A servitude is a right that serves someone through the granting of a right. A servitude can either be a personal servitude (in favour of a specific person), or a praedial servitude (over land).
A personal servitude can be a Usufruct (a personal right granting the holder of the right to the use and fruits of property), a right of Usus or a right of Habitatio. These rights are typically granted through a Notarial Deed of Usufruct/ Usus/ Habitatio (which needs to be signed before a Notary Public) alternatively, the right can be granted in a will in favour of a specific person (for example, it is possible in a will to grant a beneficiary a right of usufruct over immovable property owned by the deceased, which will become effective on death). A personal servitude provides the holder of the right the limited use and enjoyment of the property, and needs to be registered at the Deeds Registry against the immovable property concerned. Personal servitudes are personal only to the person in whose favour the right is granted, and such right is not transferable. The personal servitude will usually be extinguished after the expiry of the right (where the right is for a limited time) alternatively on the death of the holder of the right. Before a person considers granting such rights to another, it should be carefully considered, as these rights often have tax implications arising from the grant or lapsing of such rights.
A praedial servitude is a servitude that is registered over a parcel of land, usually over two pieces of land adjacent to each other or within close proximity to each other, and owned by two different owners, with one piece of land being the dominant tenement (the piece of land enjoying the right) and the servient tenement (the piece of land that is "burdened" by the granting of the right over the land in favour of the dominant land). Unlike personal servitudes, a praedial servitude is not granted in favour of a specific person, but is granted over the immovable property. The praedial servitude can be created through a power of attorney to pass transfer in order to create a condition in the title deed, alternatively through a Notarial Deed of Servitude. A typical example of a praedial servitude would be a "Right of Way" servitude. The servitude has to be registered against the Title Deeds of the property - if a servitude is not registered, it is not enforceable against the owners of the land. It is therefore essential that such rights are registered once created, to ensure it is binding in our law. A conveyancer can check the title deed and property at the Deeds Registry to check whether there is a servitude registered against property.
Get advice
If you need assistance with drafting or registering a Notarial Deed of Servitude, or would like advice on how to cancel one, contact our offices for assistance. Our firm has experience in drafting various servitude agreements, advising on rights created from such servitudes and advise on the tax implications of personal servitudes. Our offices are located in Pinelands, Cape Town and Rosebank, Johannesburg. Email info@spencelaw.co.za to obtain specialist assistance from a Notary Public and Conveyancing Attorney.
Disclaimer: This article is for information purposes only and should not be regarded as legal advice, and may contain errors and/or omissions. Always seek legal advice from your attorney. Spence Attorneys will not be held liable for any person acting on information herein.
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