A servitude is described as a limited real right over immovable property. This right is registerable and allows the holder of the servitude to exercise some right over another person’s property.
The three most common property servitudes are personal servitudes, praedial servitudes and public servitudes.
A personal servitude is registered against immovable property in favour of a person or legal entity. The real right therefore attaches to a person, being the holder of the servitude, and not the land itself. The most common personal servitudes are use, usufruct and habitatio (the right of occupancy). The general rule is that a personal servitude is created by way of a notarial deed, which deed is then registered in the Deeds Office.
The servitude is usually created for a specified period of time and lapses upon the occurrence of an event as specified in the notarial deed, alternatively for the lifespan of a person, in which case the right dies with the holder of servitude. A personal servitude cannot be transferred or ceded to any person except to the owner of the land being burdened by the servitude.
A praedial servitude is registered against immovable property in favour of other immovable property. The real right therefore, attaches to the land itself and not a person. In this instance, you will have a servient tenement and a dominant tenement. The servient tenement is the land burdened by the servitude, and the dominant tenement is the land that benefits from the servitude. Common examples of praedial servitudes are right of way, right of aqueduct, right of conduction of electricity and right of grazing servitudes.
Like personal servitudes, praedial servitudes are generally created by way of a notarial deed. A praedial servitude may be created for a limited period of time or in perpetuity. In most instances for the registration of a praedial servitude, a land surveyor or architect would need to prepare a servitude diagram, which diagram would indicate the location of such servitude. This diagram will need to be attached to the notarial deed and registered with same.
A praedial servitude may lapse by effluxion of time or may be cancelled by agreement between the parties. In both instances, a notarial deed of cancellation will have to be registered in the Deeds Office to note the cancellation against the title deed of the land concerned.
Public servitudes are created in favour of the general public and are not registered in favour of a specific person, legal entity or other immovable property. An example of such servitude would be a public road.
Servitudes are excellent tools used to grant a right of use or access to a person over immovable property, alternatively to prohibit a person from exercising a normal ownership right.
Servitudes may increase or decrease the value of your immovable property depending in whose favour the servitude is registered.
Should you require any assistance regarding servitudes, please do not hesitate to contact our conveyancing department at SchoemanLaw Inc.