Understanding what a servitude is

Tuesday, May 14, 2024, 11:36
Author name
George Seruwagi
A young professional looking at the terms of a servitude on a computer

A servitude, also known as a real right, is a legal right that one person holds over another person's property.  It allows them to access, utilise, or restrict certain aspects over that property.  Servitudes are essential for managing land resources, resolving conflicts between landowners, and promoting the overall development of communities.

Servitudes in South Africa are governed by the Deeds Registries Act, 1937 (Act No. 47 of 1937).  The Deeds Registries Act provides for the registration of servitudes over title deeds, which ensures that they are legally binding and enforceable against future owners of the property.


Positive versus negative servitudes

Positive servitudes grant the dominant land an affirmative right to utilise the servient land in a particular manner, such as the right of way.  In contrast, negative servitudes restrict the servient land owner, prohibiting them from certain actions that could interfere with the dominant land's enjoyment of its rights.


Types of servitudes

Servitudes can be broadly categorised into two types:

Predial servitudes

These servitudes are attached to the land itself, rather than to a specific individual.  They benefit the dominant land, the property that holds the servitude right, and burden the servient land, the property over which the servitude is held.  Common examples of predial servitudes include aqueducts, rights of way, and rights of maintenance.

Personal servitudes

These servitudes are attached to an individual rather than to the land.  They grant specific benefits or privileges to a particular person, not to the property itself.  Examples of personal servitudes include rights of occupy, usufruct, and usus.


Importance of servitudes

Servitudes serve several important purposes in property law:

Efficient land use and resource sharing

Servitudes enable landowners to share resources and access essential utilities, such as water, electricity, and roads, without having to own the entire property.  This promotes efficient land use and allows for the development of areas that might otherwise be inaccessible.  For instance, a right-of-way servitude allows a landowner to cross another's property to reach their land, preventing the need for multiple access roads and preserving valuable land resources.

Resolving land use conflicts and promoting cooperation

Servitudes provide a legal framework for resolving potential conflicts between landowners regarding access, use, and enjoyment of land.  They establish clear guidelines and limitations on how each party can utilise the property, preventing disputes and promoting cooperation.  For example, a covenant servitude might restrict the height of buildings on a property to ensure that neighbouring landowners have unobstructed views.

Enhancing property values and supporting economic development

Servitudes can significantly enhance the value of properties by providing access to essential resources, utilities, and infrastructure.  For instance, a right-of-way servitude can increase the value of landlocked property by providing access to a public road.  Additionally, servitudes can support economic development by facilitating the transportation of goods and services, enabling the establishment of businesses, and attracting investment.

Preserving historical sites and natural features

Servitudes can be used to protect and preserve historical site, natural features, and environmentally sensitive areas.  Conservation easements, for example, can restrict development or land use changes on a property, ensuring the preservation of its natural beauty or historical significance for the benefit of the community.

Maintaining community infrastructure and utilities

Servitudes are crucial for maintaining and expanding community infrastructure, such as roads, power lines, and water pipes.  Utility easements allow these essential services to cross private properties without the need for land acquisition, ensuring that communities have acces to the infrastructure they rely on.


Creating servitudes

Servitudes can be created in various ways, including:

Express grant:  This involves a written agreement between the landowners, clearly defining the servitude right and its terms.

Created on transfer:  Where the owner of a land decides to sell their property, and they have an adjacent piece of land they can make a condition of sale that affords a servitude either over or in favour of the piece of land that remains in their possession


Termination of servitudes

Terminating a servitude involves extinguishing the legal right that one person holds over another person's property.  This can occur in several ways, depending on the type of servitude and the circumstances surrounding its creation.


The most common method of terminating a servitude is through a formal cancellation agreement between the dominant landowner (the party with the servitude right) and the servient landowner (the party whose property is burdened by the servitude).  This agreement clearly states the intention to extinguish the servitude and should be registered with the relevant land registry office to make it legally binding.


When the dominant and servient holder becomes the same person, the servitude is automatically extinguished.  This is known as a merger, as the two separate legal interests merge into one.


In some cases, servitude may be terminated through prescription, a legal principle that recognises the loss of rights after a period of time.  For example, if a usufruct was granted for the lifetime of a certain person, if that person dies the usufruct dies with them.

Fulfilment of resolutory condition

Some servitudes are created with a resolutory condition, a specific event or circumstance that, when fulfilled, automatically terminates the servitude.  For instance, a servitude granted for the sole purpose of constructing a temporary structure would be extinguished once the structure is demolished.

Judicial decree

In certain circumstances, a court may order the termination of a servitude if it determines that the servitude is no longer necessary, is causing undue hardship to the servient landowner, or is incompatible with the public interest.


Considerations for terminating servitudes

Before initiating the termination of servitude, it is crucial to carefully consider the implications and potential consequences.  Servitudes often have a significant impact on the value and usability of land, and their termination can have both positive and negative effects.

Impact on land values

Terminating a servitude may increase or decrease the value of the affected properties.  For instance, extinguishing a right-of-way servitude could reduce the value of the dominant property due to restricted access.  Conversely, removing a servitude that retricts development could increase the value of the servient property.

Impact on land use

Termination of a servitude may alter the permitted uses of the affected properties.  For example, removing a conservation easement could allow for development on previously protected land, potentially altering the landscape and impacting environmental conservation efforts.

Impact on neighbouring properties

Termination of a servitude may affect the rights and interests of neighbouring landowners.  For instance, removing a covenant servitude that restricts building heights could obstruct the views of the neighbouring properties.


Consultation with legal professionals

Given the potential complexities and legal implications involved in terminating servitudes, it is strongly recommended to consult with experienced legal professionals.  You can also gain legal knowledge about servitudes with the workshop on servitudes offered by the Gawie le Roux Institute of Law.  At the Gawie le Roux Institute of Law, you will reveive the necessary training to assess the specific circumstances of the servitude, advise on the most appropriate method of creation and termination of servitudes, and ensure that the process is conducted under applicable laws and regulations.


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