It is trite law that a praedial servitude is established over a servient tenement for the benefit of a dominant tenement, irrespective of the identity of the owner. There must thus be at least two pieces of property involved for the creation of a praedial servitude.
A personal servitude, on the other hand, is constituted over a servient tenement in favour of a particular person, and is usually extinguished by the death of the holder. There must thus be at least one piece of property and at least one person. The successors in title of the owners of the servient tenement (land) are bound by the personal servitude.
In the case of Resnekov v Cohen 2012(1) SA 314 (WCC) the Court had to decide whether a condition couched as follows:
C. To the following special conditions contained in the said Deed of Transfer No. 3312 dated 10th April, 1926, imposed for the benefit of A. Kantorowitch and his Successors in Title:
‘No building other than single storied buildings shall be allowed to be erected on the property hereby transferred …’ (my underlining)
resulted in the creation of a personal or praedial servitude.
Judge B M Griesel held as follows regarding the matter:
“It is trite that for a praedial servitude to exist there has to be at least two properties, a dominant and a servient tenement. The condition in question does not purport to be registered in favour of any particular property. This is fatal to the applicant’s contention, as ‘[i]t is the existence or non existence of a dominant tenement which is the decisive factor in differentiating between personal and praedial servitudes’, In casu, there is no dominant tenement. In this context, it is also significant – although not decisive – that the servitude is not registered in the title deed to the applicant’s property. Instead of mentioning a dominant property, the provision makes specific mention of a particular person, namely Mr. Kantorowitch. He is cited simply as ‘transferor’ and not in his capacity as owner of any property. This is a powerful indication that a personal servitude was being created.
In the light of these various considerations, I am of the view that the condition in question constitutes a personal servitude, and not a praedial servitude. I am fortified in this view by the presumption in law that in cases where it is uncertain whether a particular servitude is praedial or personal, the servitude is presumed to be personal.”
The question as to whether a personal servitude can be made transferable by agreement was also addressed. In the condition in question, the mere fact that the condition included “and his successors in title” did not create a praedial servitude.
It was held that there is no direct authority in our law that allows parties by agreement to convert a personal servitude into a praedial servitude, merely by making it binding on successors in title. It was further held that the right conferred by a personal servitude is inseparably attached to the beneficiary and cannot be transmitted to his or her heirs, nor can it be alienated.
Practitioners must be wary when wording servitudes. If it is the intention to create a praedial servitude, both the dominant and servient tenements must be referred to. To merely refer to the owner and not the property, will given the above judgement be tantamount to a personal servitude. Examiners on the other hand, must note that should the condition be couched in a manner not referring to the servient tenement, and the holder of the servitude has died, the provisions of section 68(1) of the Deeds Registries Act 47 of 1937, must be invoked to cancel the personal servitude.