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Summary 17 Servitude's and Restrictive Conditions
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- University Of The Freestate (UFS)
Complete summary of servitudes
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17 SERVITUDES AND RESTRICTIVECONDITIONS
SERVITUDE
A SERVITUDE is a limited real right to movable or immovable property of another person (owner), which
grants entitled person (holder of servitude) certain specific entitlements (usually entitlements of use and
enjoyment), and these entitlements limit entitlements of owner in respect of owner in one way or
another.
A. PRAEDIAL SERVITUDES
A PRAEDIAL SERVITUDE is a limited real right in land of someone else (servient tenement) which grants
holder of servitude certain entitlements of use and enjoyment in his capacity as owner of dominant
tenement.
CHARACTERISTICS
(a) It can be granted only in respect of immovable property (hence term praedial servitude).
(b) There are always two pieces of land involved, namely a dominant and a servient tenement.
Holder of servitude is owner of dominant tenement, and he exercises entitlements of use and enjoyment
resulting from servitude with regard to servient tenement in his capacity as owner of dominant tenement.
Owner of servient tenement must tolerate this exercise of entitlements by holder of servitude.
(c) Limited real right vests in holder of servitude in his capacity as owner of dominant tenement (and not in his
personal capacity).
This means that successors-in-title of owner of dominant tenement are automatically entitled to servitude –
servitude ‘runs with the land’.
A servitude is not transferable in sense that it is transferred from one person to another.
(d) Burden on servient tenement is transferred automatically to new owner (in his capacity as owner) when land
is transferred.
It is therefore a burden on property and enforceable against owner of servient tenement and all his
successors-in-title.
(e) In principle praedial servitudes are perpetual, but in terms of section 76(1)bis of Deeds Registries Act 47 of
1937 it can be made subject to a resolutive condition or term.
(f) Dominant and servient tenements must be located next to or near each other .
(g) A benefit which increases value and usefulness of dominant tenement must vest in owner of dominant
tenement and his successors-in-title.
(h) In principle, this must hold a perpetual benefit for dominant tenement – this is called utilitas requirement. I
(i) De Kock v Hanel: Court decided that a praedial servitude must offer a permanent benefit to dominant
tenement and not merely serve personal pleasure or caprice (fancy) of owner of land.
(j) In principle servitudes are indivisible.
, (k) Only exception is in case of subdivision of servient tenement which can lead to partial liberation since not all
parts of servient tenement normally serve dominant tenement, or not all parts of dominant tenement
normally derive benefit from servitude.
(l) Entitlements of servitude holder can never be such that owner of servient tenement is compelled to perform
a positive act.
There can only be an obligation on owner of servient tenement to tolerate holder of servitude’s entitlements
(positive servitude) or to allow a certain situation on servient tenement to continue for benefit of holder of
servitude (negative servitude) – Cillie v Geldenhuys
(m) It usually comes into being by registration in deeds registry as a conditional clause in title deed of servient
tenement.
It can also be created by means of a notarial deed registered in deeds registry and by making an
endorsement against title deed of servient tenement.
CATEGORIES
Categories of praedial servitudes are unlimited.
If a person acquires entitlements in respect of nearby land of a landowner which meet requirements, a
praedial servitude is created as a limited real right.
Distinction is made between
- rural praedial servitudes,
- Urban praedial servitudes and
- Statutory praedial servitudes.
Examples Of Rural Praedial Servitudes
(a) A right of way - (Nach Investments (Pty) Ltd v Yaldai Investments)
This includes right of owner of dominant tenement to drive, walk, herd cattle and transport products over
servient tenement within reasonable bounds.
It means, furthermore, that members of family and visitors also have access to dominant tenement over
servient tenement.
Smith v Mukheiber: Court held that every new owner in case of a subdivision of dominant tenement
acquires same right of way over servient tenement as right of way that original owner of dominant
tenement exercised over servient tenement.
If it was agreed that owner of servient tenement also has an obligation to maintain access road, this does
not form part of servitude but is merely a creditor’s right that owner of dominant tenement has against
owner of servient tenement.
Usually it is agreed that a specific route must be used.
A road of necessity is granted if a landowner can have access to his land only over land of a nearby
landowner.
Owner of servient tenement has reasonable use of servitude road. Erection of an electronic gate which can
also be opened by holder of servitude is not per se an indication of unreasonable interference with
entitlements of holder of servitude – Roeloffze NO v Bothma
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