IN CONTEMPORARY PROPERTY LAW, SERVITUDES ALLOW PEOPLE TO CREATE STABLE LONG-TERM ARRANGEMENTS FOR A WIDE VARIETY OF PURPOSES, INCLUDING A SHARED PROPERTY
Property Law 2PP202/ LPPO202
Example questions and model answer
Servitudes
Thuliswe and Zwelethu are neighbours, Thuliswe’s property does not have access to
the public road. Zwelethu recently purchased the property and the two neighbours
have developed a somewhat antagonistic (hostile, unfriendly) relationship towards one
another. The antagonism between the two began as a result of Zwelethu not allowing
Thuliswe to access and use a private service road situated on his property to access
the public road. As this is the only way for Thuliswe to get to the public road she is
very upset. A quick internet search has led Thuliswe to suspect she has a right to use
the service road that belongs to Zwelethu. She approaches you, a newly admitted
attorney for advice. Answer the questions that follow;
1. Does Thuliswe have a right to use the private service road belonging to
Zwelethu? In your answer you must provide a brief explanation of what right
Thuliswe has, if any. As well as any requirements Thuliswe would need to
prove in order to prove such a right exists.
ANSWER:
1. Yes, Thuliswe has a praedial servitude, in the form of a right of way or way of
necessity. A praedial servitude is a limited real right in property belonging to
someone else. A praedial servitude is a perpetual servitude that vests in
successive owners of the property. The requirements for the establishment of
a praedial servitude are that there must be two pieces of land, one piece of
land, the servient tenement, must serve, that is be of some use or utility to, the
dominant tenement. This utility must enhance the use and enjoyment of the
dominant tenement and be based on some permanent feature or attribute of
the servient land. Lastly in order to prove the existence of a praedial servitude
there is a requirement of passivity, that is to say the right is passive in nature.
This means it must not require the owner of the servient tenement to do
something i.e. impose a positive duty on them. In the above set of facts there
are two pieces of land one belonging to Thuliswe and one belonging to
Zwelethu. The servient tenement, Zwelethu’s land provides use to Thuliswe’s
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