Law Reports

Resnekov

Resnekov v Cohen [2011] ZAWCHC 317;1787/11 Dispute between neighbours over addition to property said to be in conflict with title deed restriction applicable to property – whether restriction constitutes a praedial or a personal servitude.

Two buidlings originally formed part of a parcel of land known as Lots 11, 12 and 13 at Sea Point. When sold in 1926 title deed restrictions were inserted into the title deeds of the respondents property, including this one:

SUBJECT

A. . ...

B. …....

C. To the following special conditions contained in the said Deed of Transfer No 3312 dated 10 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 properly hercbv transferred ..." (Emphasis added)  

which forms the subject of the case.

In answering the question as to whether the restriction is a preadial or a personal servitude, changes to the original conditions were considered. Since the condition in question does not purport to be registered in favour of any particular property - the servitude is not registered in the title deed to the applicant's property - but instead mentions a particular person as 'transferor' and not as an owner it indicates an intention to create a personal servitude.

Counsel for the applicant argued in the alternative that should the servitude be personal it cannot nevertheless be legally impossible by agreement to create a perpetual personal sevitude.  He had to concede however that there is no direct authority in our law for the proposition that parties may by agreement convert a personal servitude  into a perpetual right.  In any event ample authority exists for the general prinicple that the right conferred by a personal servitude is inseparably attached to the beneficiary and that it cannot be transmitted to his or her heirs, nor can it be alienated.   Finally applicant's argument falls foul of the rule of construction that because a servitude is a limitation on ownership, it must be accorded an interpretation which least encumbers the servient tenement. 

Full judgment

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