Servitude of Right of Way

Nicolene Schoeman-Louw | SchoemanLaw Inc  

Category: Property and Contract Law  

A servitude of right of way is a legal tool that allows someone who does not own a piece of land to cross over it in order to reach their own property. In South Africa, this type of servitude often comes into play when a property is “landlocked” in other words, it has no direct access to a public road and requires passage through a neighbouring property. 

The land that carries the burden of the servitude is called the servient tenement, while the property that benefits is the dominant tenement. Because this is a praedial servitude, the right attaches to the land itself, not to the owner. That means the right of way stays in place even if the land changes hands. In practice, it creates a permanent limitation on how the servient property can be used, but only to the extent necessary to allow access. 

Types of Right of Way Servitudes 

South African law recognises two main categories of right of way servitudes: 

Positive servitudes: These allow the dominant property owner to actively use part of the servient land. Common examples include: 

• Pedestrian or vehicle access routes; 

• Laying pipelines or electrical cables; 

• Building or maintaining an access road. 

Negative servitudes: These prevent the servient property owner from doing things that would block access. For instance: 

• Erecting walls, fences, or gates that obstruct the route; 

• Planting trees or shrubs that make passage difficult. 

Whether positive or negative, the scope of the servitude must be precisely defined in a notarial deed to ensure it is legally effective and enforceable. 

Notarial Agreement 

The most common and secure way to establish a right of way servitude is through a formal agreement between the landowners, recorded in a notarial deed before a notary public and registered in the Deeds Office under the Deeds Registries Act 47 of 1937. 

Without registration, an agreement between the parties creates only a personal right which is enforceable, but only between them, and not binding on future owners. Registration turns it into a real right, enforceable against anyone who later acquires the property. 

To be valid, the notarial deed must clearly spell out the route, dimensions, type of access, and any limitations or conditions attached to the servitude. 

Acquisitive Prescription 

A right of way may also be established through long-term use, known as prescription, under section 6 of the Prescription Act 68 of 1969. If a person has used a route across another’s property openly, peacefully, and without interruption for at least 30 years, they may acquire a legal servitude, even without the servient owner’s consent. 

The key requirement is that the use must be as of right and not merely tolerated. Once established, the prescriptive servitude has the same force as a registered notarial right. 

Servitude by Necessity 

Where a property is completely landlocked, the courts can step in to grant a servitude of necessity. This ensures that no piece of land is left without access to a public road. The court will usually select the most practical route with the least impact on the servient property and may order the dominant owner to compensate the servient owner. 

Essential Components of a Valid Servitude 

To avoid future disputes, a right-of-way servitude must be drafted with care. Essential elements include: 

• Clarity of location – the route must be mapped, often with surveyor diagrams. 

• Defined width and purpose – specify whether the servitude is for walking, vehicles, or utilities. 

• Conditions of use – such as time restrictions or frequency of access. 

• Maintenance obligations – typically the responsibility of the dominant owner, unless otherwise agreed. 

• Registration – the servitude must be recorded on the title deeds of both properties to bind future owners. 

Maintenance Responsibilities 

As a general rule, the dominant owner (the one who benefits from the servitude) must keep the route safe and usable. This includes clearing vegetation, repairing damage, or resurfacing if necessary. However, the parties can agree to different arrangements — for example, sharing maintenance costs. To avoid disputes, these agreements should always be written into the notarial deed. 

Amendment and Termination 

Servitudes are not necessarily permanent in every respect. They can be amended by agreement, through a supplementary notarial deed registered in the Deeds Office (e.g., to change the route or width) or terminated in several ways: 

• By agreement between the parties; 

• By merger, if both properties are later owned by the same person; 

• By abandonment, if the dominant owner stops using it and shows no intention to resume; 

• By court order, if the servitude becomes obsolete, impractical, or prejudicial. 

In each case, termination must be properly registered to update the title deeds. 

Practical Implications for Property Owners 

For the servient owner, a registered right of way may reduce property value, limit development options, or create liability concerns. For the dominant owner, however, it can significantly increase property value by securing long-term access. 

Risk Mitigation 

A properly drafted notarial deed helps avoid disputes and protects both parties. Before buying or developing property, owners should: 

• Conduct a title deed search to identify any servitudes; 

• Commission a land survey to confirm the exact route and scope of access; 

• Ensure servitudes align with zoning rules and future development plans. 

Conclusion 

The servitude of right of way is an important feature of South African property law. Whether created by agreement, long-term use, or necessity, it balances the principle of private ownership with the practical need for access. 

At SchoemanLaw Inc, we assist clients with drafting and registering servitudes, resolving disputes, and structuring access rights to protect property value and promote smooth land use. 

Contact us for assistance today!   

https://schoemanlaw.co.za/our-services/contract-drafting/  

https://schoemanlaw.co.za/our-services/conveyancing-and-property-law/  

Nicolene Schoeman-Louw | SchoemanLaw Inc  

Commercial Law, Property Law and Contract Legal Specialist