Do You Want To Register A Servitude Over Your Property?

At some point or another, some property owners may experience their neighbour encroaching on their property. This could happen in a number of ways, such as the branches of your neighbour’s fruit tree growing long branches, which encroach on your property and shed leaves into your yard or your neighbour uses part of your property to gain access to theirs. In law, such circumstances give rise to what is known as a “servitude” and instead of berating your neighbour over his tree shedding leaves into your yard in the autumn season, a mutually beneficial legal relationship may be created by executing a deed of servitude that will allow your neighbour to carry on being a seasoned gardener while you are compensated for your leaf cleaning troubles.

What is a servitude?

When an individual owns immovable property, such ownership comes with the right to use, possess, alienate and even destroy what he owns. These are known as real rights. A servitude is created when such ownership is limited by the creation of real rights in favour of other persons over the same immovable property.

A servitude is therefore a right belonging to one individual, in the property of another, entitling the former individual to exercise some right or benefit in the property or to prohibit the latter from exercising one or another of his normal rights of ownership.

There are various types of servitudes, however, for purposes of this article, we will look at a certain type of servitude known as a praedial servitude.

What is a praedial servitude?

A praedial servitude is a right, which one property “the dominant tenement” has over another “the servient tenement”. The servitude is enjoyed by the registered owner of the dominant tenement, in his capacity as registered owner of such tenement and usually continues ad infinitum (in perpetuity).

Praedial servitudes can be classified into rural and urban praedial servitudes. It is the use of the land, not the area in which it is situated, which determines whether it is rural or urban. A few examples of praedial servitudes are – 

• a right of way;
• a right of encroachment;
• a parking servitude;
• a right of aqueduct;
• a right of conduction of electricity;
• a right to lead away refuse, sewerage and rain water; and
• any kind of restriction on the type, height and format of buildings to be erected on a servient tenement.

Creation of praedial servitudes

Praedial servitudes are created by an agreement between the owners of the respective tenements and such agreement is registered by means of a notarial deed.

There needs to be a valid cause/ground for the registration of such servitude, which grounds include a sale, a donation, an exchange, a partition agreement or a testamentary bequest. The agreement between the owners of the tenements to create a servitude will be an agreement to alienate an interest in land and should therefore be incorporated in a written deed of alienation as required by the Alienation of Land Act 68 of 1981 (as amended).

The terms and conditions to which the servitude are subject to should be set out in the deed. These terms and conditions may, for example, include – 

• consideration payable for the creation of the servitude; 
• who is responsible for the maintenance of the servitude area (who will clean up the leaves shed by the tree); 
• at whose expense will the servitude area will be maintained; 
• restrictions of use (that your neighbour may not plant another tree over and above the existing one); 
• the manner in which the parties ought to conduct themselves (meaning you cannot chop down the fruit tree); and 
• the registration of the deed at the deeds registry, the payment of costs for the execution and registration of the deed.

Lapse of praedial servitudes

Should a praedial servitude only operate for a fixed period, the owner of the servient tenement may lodge an application to the registrar of the Deeds Office requesting him to endorse the title deeds of the tenements in question to the effect that the servitude has lapsed. The relevant title deeds of the dominant and servient tenement must be submitted to the registrar, together with the notarial deed of servitude.

Cancellation of praedial servitudes

If a praedial servitude is cancelled by an agreement between the respective owners of the respective tenements, the cancellation must be effected by means of the registration of a bilateral notarial deed.

Please note that the above is a general overview of the process to be underwent when registering a praedial servitude. Depending on the facts of the matter, certain aspects of the process may differ. The reader is therefore advised to consult with an attorney and notary where necessary.