Property Servitudes

A servitude is a right which one person has over the immovable property of another person.  The holder of the right is then entitled to do something on the property, but may also be empowered to prevent the owner from exercising uninhibited ownership for example by restricting the height of buildings on the property.

There are three main types of servitudes, namely, praedial, personal and public servitudes.

A praedial servitude is a limited real right constituted in favour of the owner of a property in his capacity as owner.  The servitude entitles one property owner to exercise a right on the property of another, or to prohibit another property owner from exercising a normal ownership right.  There must be at least two properties involved in the servitude to be a praedial servitude. Examples of praedial servitudes are a right of way or a servitude that restricts the erecting of a building above a certain height that may obscure the view of the holder of the servitude.  Praedial servitudes can be granted in perpetuity or for a limited period only.

A personal servitude is a limited real right constituted in favour of the holder in his personal capacity to exercise a right on the property of another person, or to prohibit the property owner from exercising a normal ownership right.  Two erven are not a requirement as the holder is entitled to the rights in his personal capacity. Examples of personal servitudes are usufruct,  usus and habitatio. Personal servitudes cannot be granted in perpetuity and is usually linked to a period or the life time of the holder of the right.  Personal  servitudes in favour of a legal person, such as a company, terminate after a 100 years.

Both praedial and personal servitudes are usually created in a contract between the parties.  However, to  be effective against third parties registration of the servitude against the title deed of the property is required.  This can be done by executing a notarial deed which is then lodged at the Deeds Office and the servitude is then endorsed as a condition on the title deed of the  property.  A servitude can also be created by means of a reservation in a deed of transfer when property is transferred.

A public servitude is created in favour of the general public, it is not praedial as there is only one property involved and it is not personal as it is not in favour of a specific individual, but the public in general.  An example would be a public road.

For more information regarding property servitudes kindly contact one of our conveyancers.