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Servitudes as security

17 July 2014

Introduction
As a general rule every movable or immovable res in commercio may be the object of a real right of security. The question begging an answer is whether servitudes can serve as security under a mortgage bond.

Praedial servitudes
Praedial servitudes cannot be mortgaged separately from the dominant tenement as they cannot be detached from it and transferred to another piece of land. It will thus be impossible to foreclose on a praedial servitude.

Personal servitudes
The only personal servitudes that may serve as security under a mortgage bond is a usufruct (see section 69 of the Deeds Registries Act 47 of 1937 and Grabe v Bornman 1938 OPD 127, and possibly a habitatio (see Van Leeuwen Censura Forensis 1.4.7.19. Due to the personal nature of a usus, such personal servitude cannot be mortgaged. All other personal servitudes, excluding the aforesaid, cannot serve as security under a mortgage bond.

Allen West
Head of Deeds Training
Pretoria

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