Servitudes explained

2017-07-05 06:02
Corlia van Zyl

Corlia van Zyl

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Question:

I applied to my municipality to have the building plans for the extension of my garage approved. My proposed extension was rejected on the grounds that it would be constructed over a servitude registered against my title deed in favour of the municipality. What is a servitude? Can I have it removed?

Answer:

A “servitude” is a limited real right registered in the Deeds Office against the title deed of the property of a person in favour of another person or entity. The holder of the servitude (right) will therefore be entitled to exercise some right on the property of another.

There is an important distinction between personal servitudes and praedial servitudes.

A personal servitude is a right ­attached to a specific person to use and enjoy another’s property and cannot exist longer than the lifetime of the person in whose favour it was registered. A praedial servitude, on the other hand, is a right that attaches to the property itself (not a person). Even though a change in ownership may take place, this servitude will continue to exist and can only be cancelled by agreement between the parties.

A personal servitude can be created by agreement between the parties, but in practice it is mostly provided for in terms of a will in which a surviving spouse is given the right to occupy the property during their lifetime.

A praedial servitude is mostly concluded by way of an agreement between parties which sets out the rights and responsibilities of each party, as well as the consideration amount that the person in whose favour the servitude is to be registered will have to pay the owner of the property. The consideration payable is usually in the form of a lump sum, but the parties are free to agree on a monthly or quarterly payment.

The general rule is that both personal and praedial servitudes must be registered against the title deed of the property, mostly by means of a notarial deed between the owner of the property and the holder of the real right. The servitude agreement must be drafted and notarised by a notary public and registered in the Deeds Registry.

After registration in the Deeds Office, the servitude forms part of the conditions contained in the title deed.

The servitude can be cancelled by an application to the Registrar of Deeds.

It is advisable to contact your attorney to help you ascertain whether a servitude is registered against your property and to identify the type of servitude, as well as any steps you can take to have the servitude removed.

– Corlia van Zyl, associate, ­Pha­tshoane Henney Attorneys

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