Conveyancing and Property Transfers

 

 

A servitude is a registered legal right that one person or property has over the property of another. It essentially "burdens" one property (the servient property) for the benefit of another person or property (the dominant property). It's a real right that is officially recorded against the property's title deed.

A praedial servitude benefits a property, not a person. For example, a "right of way" allows the owner of a landlocked property (dominant) to cross another property (servient) to get to the road. This right passes to all future owners of the dominant property. A personal servitude benefits a specific person. The most common example is a usufruct, which gives a specific individual the right to use and enjoy a property and its income for their lifetime. This right expires when that person dies and does not pass on to their heirs.

Servitudes are formally created by a Notarial Deed drafted by a Notary Public (a specialist attorney) and signed by the owners of the affected properties. This deed is then registered in the Deeds Office against the title deeds of both the servient and, if applicable, the dominant properties. They can also be created by a court order or in a last will and testament (e.g., granting a usufruct).

No. An informal, unregistered agreement is only a personal right between the parties who signed it. It is not a real right and will not be binding on future owners of the properties. To be legally enforceable against the world, a servitude must be registered in the Deeds Office.

Your conveyancing attorney will find any registered servitudes during their title deed search. The title deed is the property's legal record, and it will list all registered servitudes, mortgages, and interdicts. It is a critical step in the property transfer process to identify what limitations or rights affect the property.

Rights of way are very common, especially for properties that are "landlocked" or require access over another property. Other common servitudes include those for municipal services (sewerage, water, electricity lines) and usufructs created in wills.

Yes, provided that their use does not unreasonably interfere with the rights of the servitude holder. For example, if there is a right of way servitude road, the owner of the burdened property can still use that road, but they cannot build a wall on it or do anything that would prevent the servitude holder from using it.

Generally, the holder of the servitude (the person or property benefiting from it) is responsible for maintaining the area to the extent necessary for them to exercise their right. For instance, the person with the right of way is typically responsible for the upkeep of the road. However, these duties can be specifically defined in the Notarial Deed.

Yes. A servitude can be cancelled by a Notarial Deed of Cancellation signed by the servitude holder and the owner of the burdened property, which is then registered in the Deeds Office. They also automatically lapse if the person holding a personal servitude dies, or if one person becomes the owner of both the dominant and servient properties (merger). In cases of disuse, a court order may be sought to cancel it.

It can. A servitude that burdens a property, like a right of way for a busy neighbour, might decrease its market value as it limits the owner's exclusive use. Conversely, a servitude that benefits a property, like guaranteed access to a public road, will increase its value.

A usufruct is a personal servitude that gives a person (the usufructuary) the right to use and enjoy a property and its "fruits" (like rental income or crops) for a specific period, usually their lifetime. The usufructuary does not own the property and must return it to the "bare dominion" owner in good condition once the usufruct ends.

Often, yes. When a servitude is created by agreement, the owner of the servient property usually requires compensation from the person or property gaining the right. The cost of drafting and registering the Notarial Deed is also typically paid by the person acquiring the servitude.

The first step is to communicate with your neighbour and present the registered servitude documents. If that fails, your attorney can send a formal letter of demand. If the matter is still not resolved, you can approach the High Court for an interdict to force your neighbour to stop obstructing your right of way and to restore your access.

Generally, no. You cannot erect any permanent structure on a servitude area that would prevent or unreasonably impede the servitude holder from exercising their rights. For example, you cannot build a garage over a municipal sewerage servitude because the municipality may need to access the pipes for maintenance.

Conveyancers and Notaries Public are legal specialists in property law. They are essential for:

Drafting legally sound Notarial Deeds.

Registering the servitude correctly at the Deeds Office.

Conducting title deed searches to identify existing servitudes.

Providing expert advice on the rights and obligations associated with a servitude to protect your interests.

A servitude is a registered legal right that one person or property has over the property of another. It essentially "burdens" one property (the servient property) for the benefit of another person or property (the dominant property). It's a real right that is officially recorded against the property's title deed.

A praedial servitude benefits a property, not a person. For example, a "right of way" allows the owner of a landlocked property (dominant) to cross another property (servient) to get to the road. This right passes to all future owners of the dominant property. A personal servitude benefits a specific person. The most common example is a usufruct, which gives a specific individual the right to use and enjoy a property and its income for their lifetime. This right expires when that person dies and does not pass on to their heirs.

Servitudes are formally created by a Notarial Deed drafted by a Notary Public (a specialist attorney) and signed by the owners of the affected properties. This deed is then registered in the Deeds Office against the title deeds of both the servient and, if applicable, the dominant properties. They can also be created by a court order or in a last will and testament (e.g., granting a usufruct).

No. An informal, unregistered agreement is only a personal right between the parties who signed it. It is not a real right and will not be binding on future owners of the properties. To be legally enforceable against the world, a servitude must be registered in the Deeds Office.

Your conveyancing attorney will find any registered servitudes during their title deed search. The title deed is the property's legal record, and it will list all registered servitudes, mortgages, and interdicts. It is a critical step in the property transfer process to identify what limitations or rights affect the property.

Rights of way are very common, especially for properties that are "landlocked" or require access over another property. Other common servitudes include those for municipal services (sewerage, water, electricity lines) and usufructs created in wills.

Yes, provided that their use does not unreasonably interfere with the rights of the servitude holder. For example, if there is a right of way servitude road, the owner of the burdened property can still use that road, but they cannot build a wall on it or do anything that would prevent the servitude holder from using it.

Generally, the holder of the servitude (the person or property benefiting from it) is responsible for maintaining the area to the extent necessary for them to exercise their right. For instance, the person with the right of way is typically responsible for the upkeep of the road. However, these duties can be specifically defined in the Notarial Deed.

Yes. A servitude can be cancelled by a Notarial Deed of Cancellation signed by the servitude holder and the owner of the burdened property, which is then registered in the Deeds Office. They also automatically lapse if the person holding a personal servitude dies, or if one person becomes the owner of both the dominant and servient properties (merger). In cases of disuse, a court order may be sought to cancel it.

It can. A servitude that burdens a property, like a right of way for a busy neighbour, might decrease its market value as it limits the owner's exclusive use. Conversely, a servitude that benefits a property, like guaranteed access to a public road, will increase its value.

A usufruct is a personal servitude that gives a person (the usufructuary) the right to use and enjoy a property and its "fruits" (like rental income or crops) for a specific period, usually their lifetime. The usufructuary does not own the property and must return it to the "bare dominion" owner in good condition once the usufruct ends.

Often, yes. When a servitude is created by agreement, the owner of the servient property usually requires compensation from the person or property gaining the right. The cost of drafting and registering the Notarial Deed is also typically paid by the person acquiring the servitude.

The first step is to communicate with your neighbour and present the registered servitude documents. If that fails, your attorney can send a formal letter of demand. If the matter is still not resolved, you can approach the High Court for an interdict to force your neighbour to stop obstructing your right of way and to restore your access.

Generally, no. You cannot erect any permanent structure on a servitude area that would prevent or unreasonably impede the servitude holder from exercising their rights. For example, you cannot build a garage over a municipal sewerage servitude because the municipality may need to access the pipes for maintenance.

Conveyancers and Notaries Public are legal specialists in property law. They are essential for:

Drafting legally sound Notarial Deeds.

Registering the servitude correctly at the Deeds Office.

Conducting title deed searches to identify existing servitudes.

Providing expert advice on the rights and obligations associated with a servitude to protect your interests.

Servitudes

Empower Your Property Rights - Expert Conveyancing and Servitude Legal Services with VDM Attorneys

Navigating the complexities of property law can be a daunting experience, particularly when dealing with the intricacies of servitudes. As a property owner or prospective buyer, understanding these legal rights is essential, as they can significantly impact the value and use of your property.

At VDM Attorneys, we believe that informed clients are empowered clients. Our team of expert conveyancers is dedicated to providing you with clear, professional guidance on all aspects of servitudes, ensuring your property rights are protected. We handle the entire process, from a thorough title deed search to drafting and registering the servitude, giving you peace of mind.

What is a Servitude?

A servitude is a limited legal right that a person or property has over another's property. Essentially, it allows one party to use a piece of land they don't own in a specific, agreed-upon way, or it restricts the owner of that land from using their property in a certain manner.

The key thing to understand is that a registered servitude is not just a temporary agreement between two people; it is a real right that is tied to the property itself. This means that even if the property is sold, the servitude remains in place and is binding on the new owner.

Why Servitudes Matter for Your Property

Servitudes can have a profound impact on a property's value and usability. For a buyer, an existing servitude may limit how they can use the land, such as a right of way that allows a neighbour to cross their property. For a seller, a servitude could affect the asking price.

Common examples of servitudes include:

  • Rights of way: Granting a neighbour access across your property to reach theirs.
  • Utility servitudes: Allowing utility companies to run power lines or pipes across your land.
  • Water rights: Granting access to a water source on another property for irrigation or use.

Types of Servitudes in South African Law

Servitudes are primarily categorised based on who benefits from the right. Understanding the type is crucial to determining its implications.

1. Personal Servitudes

A personal servitude benefits a specific person, not a property. It is created for a defined period, often for the duration of the person's life. The three main types are:

Usufruct: The right to use and enjoy a property and its "fruits" (e.g., income from a rental). For example, a will might grant a surviving spouse a usufruct over a home that is inherited by the children.

  • Usus: A more limited right that allows a person and their family to occupy a property for their daily needs.
  • Habitatio: The right to dwell in a house owned by another. This right is highly protected, as demonstrated in the Supreme Court of Appeal case of Hendriks v Hendriks, which confirmed that a right of habitation can even "trump" the owner's right to occupy the property.
2. Praedial Servitudes

A praedial servitude benefits one property (the dominant tenement) at the expense of another (the servient tenement). It is a permanent right that "runs with the land," meaning it remains in effect even if ownership changes.

Examples include a servitude that gives one property the right to draw water from a stream on a neighbour's land or a servitude that prevents a neighbour from building a tall structure that would block a view.

How Servitudes Are Created and Registered

For a servitude to be legally binding and enforceable against future owners, it must be properly created and registered.

  1. Drafting the Notarial Deed: A servitude is created through a notarial deed, which is a formal legal document drafted by a qualified attorney who is also a notary public. This deed details the specific terms of the servitude, including its location and purpose.
  2. Notarisation: The notarial deed is signed before the notary public, who verifies the identities of the parties and attests to the authenticity of the agreement.
  3. Conveyancing and Registration: Our conveyancers then lodge the notarial deed with the Deeds Office. The servitude is officially registered against the title deeds of both the dominant and servient properties, making it legally binding and publicly accessible.

Why You Need a Conveyancer from VDM Attorneys

Navigating the creation, termination, or registration of a servitude can be legally complex. Our team of expert conveyancers provides end-to-end service, ensuring the process is seamless and your interests are fully protected.

We will

  • Conduct a comprehensive title deed search to identify any existing servitudes on a property you wish to buy or sell.
  • Draft or review the notarial deed to ensure it is clear, legally sound, and serves your best interests.
  • Manage the entire registration process at the Deeds Office, guaranteeing the servitude is properly recorded and binding.

Whether you need to create a new servitude, understand an existing one, or have a servitude cancelled, we provide the legal expertise and guidance to handle your matter efficiently and effectively. Contact VDM Attorneys today to secure your property rights.