An Introduction to the Nature of Servitude in Property Law

South African law acknowledges multiple rights in terms of property. Real rights consist of two arms: Ownership and Limited real rights. As such, Ownership is to complete the real right, and the most absolute real right in one’s own property is a Ownership right. 

Real Rights  

The right of Ownership in real rights constitutes the most thorough relationship between a person and a thing. Related property rights are derived from Ownership and Ownership's limited applicability.  

Hence, if the right can be said to be accurate in nature but held by someone who is not the owner of the property, the person with that particular right can be said to have a limited real right iura in re aliena,  

Limited real rights  

To further unpack limited real rights in relation to property. Holders of Servitudes, in broad terms, are said to be a usufruct of the property. Servitudes are entitled to use and self-benefit from the property, which the owner of the property is not entitled to exercise. As such, Servitudes have extensive rights of use and enjoyment. Notably, the Servitudes does not have the Ownership of a particular property and cannot alienate the property as such; if a Servitude holder alienates the owner of the property, the Servitude does breach the owner’s right to Ownership, which can result in legal consequences.1 

Servitudes  

Furthermore, what distinguishes a Servitude from personal rights is that the person who claims to be a holder of a servitude bears the onus to prove its existence on a balance of probabilities.  

Generally, immovable property is the main object of a Servitude. Moveable property can be the objective of the Servitude, but this occurs in a minority of cases.  

Moreover, in terms of the relationship between the holder of a Servitude and the owner of the servient property. The owner of the property can operate as usual on or with the property as long as it is not in conjunction with the rights in relation to Servitude or grant any further Servitudes that will infringe on the existing Servitude. Then, the Servitude holder has the right to exercise and perform the rights of a Servitude holder to the fullest and, as necessary, may not be prevented or restricted from doing so. 2 

Termination of Servitudes  

Additionally, in the same way that Servitudes are granted through an agreement, can a Servitude also be terminated through an agreement. When the agreement has been signed, it has an immediate binding effect on the parties. Still, third parties are only impacted when the cancellation agreement has been registered or acknowledged by the concerned parties. Notably, a lack of consent from the Servitude holder to terminate the right can result in a failed termination. Moreover, the holder of the Servitude may abandon the right. Hence, the intention of the Servitude has a major influence regarding the proof thereof. In the case that the property has been destroyed, the Servitudes get terminated. Thus, if the property has been restored, then the same applies to the Servitude's agreement. Clearly, should the property be restored in such a way that the Servitude is unable to exercise its right, then the Servitude will result in termination.

Conclusion 

A Servitude has significant advantages in terms of usage rights on a property. Hence, it does not involve being the owner of the property. The granting and termination of a Servitude agreement underscores a fine line between the various property and limited real rights. Therefore, it highlights the importance of being specific when granting or requesting access to a property by way of an agreement.  

For any further assistance, consult an attorney at SchoemanLaw is recommended.   

Riaan Basson | SchoemanLaw Inc    

Candidate Attorney   

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