SERVITUDES EXPLAINED

Most people only come across the term servitude upon purchasing property and even then, are left with confusion as to what a servitude is outside of that particular context. Here’s what you need to know:

A servitude is a right that one person has to use or enjoy the property of another person, other than by means of lease or similar disposition. Generally, there are two types of servitudes that you would normally come across, a personal servitude and a real (praedial) servitude.

A personal servitude is a servitude registered over immovable property in favour of an individual. The most common being a usufruct. An example would be where Mr A dies and in his will bequeaths his house to his children but grants his wife a usufruct over the house until her death. In this instance the children will have the house registered in their names but the wife will have the right to live in the house until the day she subsequently dies. Lastly upon her death the children will then have both the right of ownership and use of the house.

A real servitude is a servitude registered over one immovable property (the dominant tenement) in favour of another immovable property (the servient tenement). An example would be a servitude that restricts the erecting of a building above a certain height that may obscure the view of the holder of the servitude. A real servitude can be divided into rural and urban servitudes; this however simply describes the different areas in which the servitude operates.

Important rural servitudes are those relating to right of ways such as the right of a farmer to cross the property of another. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity.  The dominant owner must exercise such a right in a reasonable way and not because this is the shortest route. The family, visitors and employees of a dominant owner may enjoy the same use of a right of way. A way of necessity may be changed when a servient owner offers an alternative route that is no less convenient.

Window-right is probably the most typical urban servitude, it gives the dominant owner the right to have a window or opening in a wall which is on the servient owners boundary. In areas of high rainfall there may be servitudes which give the right to divert water flowing from a roof, or across a dominant property, into the servient property. The opposite may apply in dry areas, where the owner of a servient property, which would be situated in a higher position than the dominant, may not interfere with the flow of water from his or her roof into the dominant property. Lastly a reciprocal servitude is one when two houses share a common wall which neither owner may demolish.

Unless a servitude is registered against the title deed of the property in the Deeds Registry, it will not be binding on subsequent owners of the property except if they were aware of it. For instance, if a farmer who has an agreement with a neighbour to draw water from the neighbour’s farm they would not be able to exercise that right should the neighbour sell the farm, unless that right was registered at the Deeds Office against the title deed of the farm.

Most servitudes are the result of an agreement between two parties on the extent of the servitudal rights, the amount to be paid by the dominant party to the servient party in consideration for allowing the creation of the servitude and the period for which the servitude is to remain valid. A servitude may be acquired by prescription, for instance, a landowner may prove having used a neighbour’s land for 30 years by driving cattle across it without dispute. This land owner would then be entitled to have the servitude registered against the title deeds of the servient property. In the instance where the servitude came about by agreement, each party may sue for damages if the rights of the agreement are being violated or make an application for an interdict to prevent a further breach of agreement.

Finally, a personal servitude ends with the time specified. The parties to a real or personal servitude may end it by mutual agreement at any time. A real servitude is also ended by destruction of one of the properties or when the need to exercise it no longer exists. An example being when the owner of the dominant property purchases the servient property, however the servitude does not automatically come back into operation should the owner thereafter sell the land again to another. They would have to reregister it again.

BY: Randles Attorneys

18 replies
  1. Dan
    Dan says:

    A neighbour has road frontage for more than a km. There is an existing road access direct from the main road. He does not want to use this for his multi business interests,piggery,cattle, macadamia, tenants, employees, visitors, maintenance guys, buyers for cattle, unknowns. His reason for not using this road is racially motivated. He also closed a second road from the main road and started to extend a firebreak running through my property into a 5m wide and 106m long road. We have been exposed to theft and directly face danger in the form of farm attacks. He is running a multi million rand business through our property but offering us First time R19 000. Thereafter R30 000. This is to register a servitude and for us to fence 200 metres plus 2 four metre gates below and above the road. Note about 2 hectares below this road is my farm. This farmer has many hectares and I have only 7 hectares of which only 4 hectares is suitable for farming. He has threatened me with litigation. He is a multi billionaire and I have no financial resources. If he had no other access to his massive farm we would have looked at it differently but here his arrogance and bias just to use me and my property for his convenience and security is very unfair. He has road frontage and existing roads which he can use.

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,

  2. Ellouise
    Ellouise says:

    Thank you for the information. Question: can a servitude road if registered at the deeds office, be unregistered?

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,

  3. nompumelelo mtsweni
    nompumelelo mtsweni says:

    interesting topic and thank you for offering the explanation
    i bought a house in a ne development erea it was land nothing build at first, then once developed i noticed that the are three manholes in the yard i enquired intil i have to move to the house the developer showed me the servitudes which upon scrutinising they were not signed or approved showing manholes insed the yard i further wanted clarity as to what happened to the plan i signed before they started building which shows the manholes outside the yard i was told that the one they are showing me is the correct one but when asked were is the addendum stating the changes it’s nowhere to be found but until this day i am not getting a clear answer and i want to take this issue further but don’t know how?

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

  4. Yvette Wilschut
    Yvette Wilschut says:

    Dear Randles Attorneys. If a servitude road passes 10 farms, one on either side and you live at the end. The road is really not “drivable”. Please could you advice who would be responsible for the long toad passing all the properties from the N2 Thank you. Yvette

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

  5. Ria Mohaud
    Ria Mohaud says:

    Who is responsible for maintaining a right of way over another persons property. I bought the property 40 years ago and was explained that I have a right of way over my neighbor’s property that is located on the street to be able to get to my house (similar to a pan handle, except there are two properties not located on the street).The city of Tshwane allocated two properties which is not located on the main road of the suburb. I have lived here for 40 years, but new owners have bough the two properties located on the street. The bouganvilla shrubs have grown so big over the years that it is obstructing the double “panhandle”. In the past there was an agreement that I will maintain my panhandle and my next door neighbor will maintain their panhandle, which is not happening. Do I need permission from the owner on the street over which property I drive to get to my house to eradicate these plants, as it is his plants is he not responsible to ensure that the right of way is not obstructed in any way?

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

  6. Sharon
    Sharon says:

    We bought a farm which is over 70 Years old. The farm used to belong to a farmer who subdivided the farm into 4. So that each of his 4 children could have land . 3 of his children sold their portion. 1 remained. One of those portions we bought unfortunately it has a servitude road through the remaining children. Portion.They have never worried about us driving on it as it is the only entrance to our farm and has been there for 70 or more years. Because they are old their cousin bought it over from them and disicided to build a house right near to the servitude road. Now we are not allowed to walk on that road after 6 in case we wake their children up. I feel a prisoner on my farm now. What rights do I have. We bought our farm 10 years before they bought theirs.

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

  7. Paul Ntlaba
    Paul Ntlaba says:

    Incase of two parties agreeing to a servitude which neither owns or registered at deeds office, who then is resppnssibl2 for maintenance? Furthermore, if the servitude is registered to municipality at deeds office then the municipality grant both neighbours rights to the servitude, in case of any dispute that might arose who is responsible for the servitude?

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

  8. Annatjie Meyer
    Annatjie Meyer says:

    May I ask.. the servitude runs through our piece of land.. the neigbour who uses it has decided to cut our trees for his employees. My husband has asked him not to continue braking the trees. The trees are not an obstruction at all… what is my right now as the owner… van I sue him for damages? Thank you

    • Randles
      Randles says:

      Good Day,

      Thank you for your enquiry on our article!

      Please note that our articles are for information purposes only and do not establish a client relationship nor constitute legal advice.

      In order to ensure that you receive tailored advice in response to your query, please contact us at info@randles.co.za to make an appointment with one of our legal practitioners who will assist further.

      Kind Regards,
      The Randles Team

Comments are closed.