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Property law notes - servitudes - topic 8
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Property law notes on topic 8 relating to personal and praedial servitudes. case law, diagrams and tables includes.
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TOPIC 8: LIMITED REAL RIGHTS: SERVITUDES AND RESTRICTIVE CONDITIONS:Ownership
(First semester)
Ius in re sua/ ius in re
propria (rights in regard
to own things/things in
possession)
Possession Theme 7
(Second semester)
RIGHTS IN PROPERTY
Ius in re aliena (rights in Servitudes Theme 8
someone else’s
property) Real security Theme 9
INTRODUCTION:
Under real rights – there are two main categories:
o Ownership: rights in regard to your own things.
o Limited real rights: rights in another person’s property.
Limited real rights – it is distinguished from creditor’s/personal rights, because they create direct
entitlements towards a thing, and they can be enforced against any owner of the thing and not just
against a specific debtor.
Limited real rights are also distinguished from ownership, because ownership is a real right with
regards to one’s own property whereas limited real rights – are real rights with regard to the property
that belongs to someone else.
The most important limited real rights are:
, o Servitudes
o Real security rights
DEFINTION:
Focus is placed on the archaic/limited definition – the subjection of property to an easement.
Servitude: A limited real right to the movable or immovable property of another person (the owner)
which grants the entitled person (the holder of the servitude) certain specific entitlements (usually
the entitlements of use and enjoyment) and these entitlements limit the entitlements of the owner in
respect of the thing in one way or another.
o Ownership is never absolute/unlimited and is limited in the interests of the
community/neighbours and other holders of rights. Either by statutory provisions or by
limited real rights to the property or by personal rights against the owner of the property.
o A servitude is a good example in the way in which an owner’s ownership is limited by the
limited real right of another person in respect of the thing.
o A servitude is a limited real right which entitles its holder either the use and enjoyment of
another person’s property or it can insist that such another person shall refrain from
exercising certain entitlements flowing from his right of ownership over and in respect of his
property which ha would have, if the servitude did not exist.
o Essentially, a servitude confers a real right to benefit from the property of another either
because if affords power of use and enjoyment to someone other than the owner, or
because it requires the owner to refrain from exercising one or more of the entitlements of
ownership.
o The direct relationship between the holder of the servitude and the property to which it
relates is distinguished from a mere contractual/personal right.
Registration in the deeds registry (Section 63(1) of the Deeds Registries Act).
o In South African law, it is a requirement for the creation/transfer of a limited real right in
immovable property – that registration in the Deeds registry must take place in terms of
section 63(1) of the Deeds Registries Act.
o Real rights are registrable.
o However, it often happens that a landowner grants rights (right of use and enjoyment) to
another person, by means of an agreement. In these circumstances, the entitlements of use
and enjoyment derives from a creditor/personal right based on contract between the owner
and the holder of the rights.
o However, if these entitlements meet the requirements of the subtraction from the dominium
test (two-fold test) then the right can be registered and in this way a servitude is created.
o The difference between a servitude established by registration, and an unregistered
agreement, is that a servitude is based on a limited real right and is therefore a real burden
on the land – they are enforceable against the owner, his legal successors and all third
, parties, whereas an unregistered agreement is based on creditor’s personal rights and such is
not enforceable against successive owners – only against the current owner of the property.
NUMERUS CLAUSES – CLOSED LIST?
NB Numerus clausus?
o Is there a numerus clausus (closed list) of types of servitudes in South Africa?
Roman law: Limited number of servitudes recognized
o In roman law, there was a limited number of servitudes recognised.
o These included the category of servitudes that incorporated various kinds of rights of
way/grazing rights/rights in respect of water use and rights related to the extraction of
resources such as lime and clay.
o It also included the right of ususfructus – which is the right to use and enjoy and to take the
fruits of property and superficies (which is the right to build upon another’s land).
RDL: Restricted, but over time relaxed- provision of practically unlimited kinds of servitudes as long as
they satisfy the general validity requirements.
o At the earlier stages of Roman Dutch Law – these types of servitudes were limited – in other
words, there was a numerus clausus of servitutal rights.
o There types of restrictions have been relaxed, so that it is possible to create practically
unlimited kinds of servitudes as long as they satisfy the general validity requirements.
o If there are any doubts as to whether a right is a servitude in any given case, it will have to be
resolved by reference to the principles which determine the nature of a real right as a
protected interest, and the interpretation principles that determine the relationship between
parties.
THUS!
o New types are permitted only with great caution in accordance with the view that land
should not be unnecessarily burdened.
SA: No numerus clausus
o In principle, South Africa has no numerus clausus – there is no closed list of types of
servitudes in South Africa.
o This has various implications.
Arguments for and against no numerus clausus?
o The most important of the implications is that it might be difficult to distinguish between real
and personal rights.
o Those in favour of no numerus clausus (an open list) regard that there are numerous policy
considerations in favour of no numerus clausus, such as changing circumstances of the
current property owners, economic development and it makes the servitudes a dynamic
legal mechanism to regulate rights in relation to immovable and movable property.
o In favour of having a closed list: they say that it protects land and property from becoming
overburdened, it promotes legal certainty and it prevents the contractualisation of property
law.
CLASSIFICATION OF SERVITUDES:
, Via (rural)
Aquaductus
Real (Praedial)
(rural)
Light
(urban)
Servitudes
Ususfructus
Personal Usus
Habitatio
While there is no numerus clausus – can still classify servitudes.
The notion of servitudes implies that the property either serves another property or another person –
and the dominium of the owner of the servient (burdened) property is diminished by the servitude.
Servitudes may be divided into two distinct categories depending on whether the servitude benefits
successive owners or not.
CLASSIFICATION: REAL VS PERSONAL SERVITUDES:
What is a real (praedial servitude)?
o A praedial servitude is a limited real right that vests in successive owners of one piece of land
(the dominant tenement) which derives some benefit from another piece of land (the
servient tenement) that belongs to someone other than the owner of the dominant
tenement.
What is a personal servitude?
o Personal servitudes are limited real rights in the movable or immovable property of another,
which vest in a particular person only.
o Personal servitude ≠ personal right.
COMMON MISTAKE (MISREPRESENTATION):
Remember: All servitudes are limited real rights (real or personal)
o All servitudes are limited real rights – regardless of whether they are personal or praedial
servitudes.
Distinction between real vs personal has nothing to do with nature of rights (Real or personal): all
personal or praedial (real) servitudes are REAL RIGHTS
o The description of servitudes either as praedial or personal has nothing to do with the nature
of the rights as either real or personal.
o All servitudes are real rights, because they burden ownership.
NB: Personal servitude vs personal right
Personal servitude≠ Personal right
Adjectives “praedial” and “personal” that are used to describe different servitudes serve to IDENTIFY
WHO BENEFITS from the servitude and NOT the extent to which the rights are absolute or relative.
o Description is significant because it denotes whether the particular servitude benefits a
person in their capacity as the owner or specific property in their personal capacity.
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