Praedial servitude basics

GENERAL

Cognizance must be taken of the following:

One piece of land must serve another
For the registration of a praedial servitude one piece of land must serve another piece of land. In practice the land should be bound in favour of other land, and no reference to the owner should be made, as the servitude could be interpreted as personal, that is, one which terminates on the death of the dominus (see Resnekov v Cohen 2012(1)SA314(WCC).

The servient and dominant tenements should be in close proximity to one another, but not necessarily contiguous. For example, a property could be granted a servitude over other land separated by a public railway or even where a public road intervenes. However, there is no legal objection for a servitude to be registered in favour of one property over another property, some distance away.

It is essential that the tenement be a registered entity. A portion of a registered piece of land or an unregistered erf cannot without a separate title, be given a benefit of a servitude. Praedial servitudes over an undivided share in immovable property are, in the absence of the authority of the court, generally refused registration, although there appears to be no legal principle prohibiting such registration. A lessee, however, cannot grant a servitude over the leased property (City Deep v McCalgan, 1924 W.L.D. 276).

Ancillary rights
Once a servitude has been granted, everything necessary for its exercise is considered as having been granted as well. It is, however, safer from the point of drafting the servitude to include in the notarial deed any terms which are not implied for certain.

Restriction on the affording of the servitude
A servient owner, unless a restriction on his/her power to do so has been placed, can grant a right of way servitude to more than one dominant tenement provided that the second servitude does not interfere with the proper enjoyment of the first (Ahlbom v Vickers, 9 S.C. 484; and Estcourt Corporation v Chadwick, 1925 N.LR. 239). However, a distinction must be made between servitudes which entitle the dominant owner to use portion of the property only, (e.g. a right of way) and those which entitle the holder to take portion of the fruits (e.g. water or grazing). In the latter case the rights of the dominant owner should be carefully set out and are strictly interpreted.

Conflict of servitudes
A new servitude must not conflict with a prior servitude or other real right. If there is a conflict the consent is necessary (see sections 75(2) and 76(2) of the Deeds Registries Act 47 of 1937 (DRA)).

Servitudes over mortgaged property
Where the servient tenement is mortgaged, the mortgagee’s consent to registration is required (sections 75(2) and 76(2) of the DRA). Section 75(2)bis also requires the production of the bondholder’s consent for the cancellation of a servitude, where the dominant tenement is mortgaged.

Servitude by owner of land
It is only the owner of specific immovable property who can grant a servitude. In Willoughby’s Consolidated Co, Ltd. v Copthall Stores, 1913 A.D. 1, the Court held at p.17 that:

“there is no such thing as a general servitudal burden — a kind of floating charge - upon all property which may from time to time belong to a grantor. A servitude can only be imposed upon specific property owned by the grantor at the time.”

It is also essential that all co-owners should join in granting a praedial servitude, and that the servitude can be granted only by the owners of the servient tenement in favour of the owners of the dominant tenement (see sections 75(1) and 76(1) of the DRA).

It is to be noted that a future owner may also afford a servitude. Section 96 of the DRA permits the registration of a servitude by a person not the owner at the time of execution, provided it is registered simultaneously with the transfer of the burdened land.

Section 75 of the DRA which allows for the creation of servitudes by notarial deed only refers to the registration of servitudes granted by the owner of the servient tenement. Section 76 which allows for the creation of a praedial servitudes in favour of or over other land owned by the transferor, specifically refers to the creation thereof over land only.

Land subject to a servitude in favour of other land owned by same owner
In theory, and from a registration point of view, a servitude cannot exist over land in favour of other land owned by the same owner. Where such is purported to be created, registration will be refused. Similarly, where ownership is acquired by one owner, merger applies automatically. It is clear that a merger must be total, e.g. if A and B own a servient tenement and A acquires the dominant one, there is no merger (Mocke v Beaufort West Municipality, 1939 CPD. 135).

A praedial servitude need not be in perpetuity
Sections 75(1) and 76(1) of the DRA allows for the registration of servitudes for a limited period and they may terminate on a certain event, for example, a water servitude may be expressed to terminate when a local authority is formed to supply water.

DIAGRAMS FOR PRAEDIAL SERVITUDES

A praedial servitude may be:

General
That is covering the whole of the servient property. There is nothing in the Act which prohibits this and it is now recognised by the second proviso to regulation 73(2) of the DRA. From a practical point of view, and for clarity it seems preferable that a defined servitude affecting only the portion of the land covered by it should be registered as otherwise complications occur on sub-division.

Defined by Diagram.
Servitudes can be created either by notarlal deed (section 75) or on transfer (section 76). If a notarial deed is to be registered a servitude diagram is usually framed. If, however, land is being transferred, a servitude over a subdivision or the remainder can be represented on the sub-divisional diagram. Furthermore, a general plan may be utilized for the creation of servitudes. In terms of regulation 80(1) when a diagram contains a statement on a sub-divisional diagram which indicates that a servitude is to be created, then this must be inserted in the power of attorney or the reference deleted from the diagram, unless such servitude can only be created on the subsequent transfer of such portion. This occurs where a new servitude is represented on a diagram, but cannot be created on transfer of the sub-division because one person is purchasing both the dominant and servient tenements or the owner is taking out certificates of registered title for the properties. A caveat will be noted for the creation of the servitude when either of the properties are transferred to somebody else.

Defined without a diagram
Regulation 732) of the DRA recognizes that servitudes can, in some cases, be defined without the necessity of a diagram. The most common example is where a servitude of right of way for a specified width is created along the whole of one boundary of a property, or which route will be decided upon at a later stage.

CREATION AND REGISTRATION
Although a praedial servitude may come into existence in a number of ways, it can only be registered in terms of either section 75 or 76 of the DRA, and must under regulation 80(1) be embodied in the power of attorney if created in a deed of transfer. Section 76 of the DRA restricts a praedial servitude and may only be created in a transfer if it is over or in favour of land in the name of the transferor.

The proviso to section 76 of the DRA permits the registration of a servitude by creation in a transfer where the transferor admits that the land is subject to unregistered rights, the transferee admits having knowledge, and the dominant owner appears and accepts the servitude. His/her appearance and acceptance are created in the transfer and his/her title deed is endorsed.

If the servitude cannot be created in the transfer then it can only be created by a bilateral notarial deed.

In terms of regulation 62, in the case of lengthy servitudes for endorsement against a title deed, the Registrar can call for a certified extract for the purpose of assisting in making the necessary endorsement.

MODIFICATION
If a praedial servitude is modifIed, a bilateral notarial deed is required There is no specific procedure for this, but section 16. whid’i provides the means for the transfer of real rights, applies. The modification Is permissible for registration under section 3(o) of the DRA.

TERMINATION

A praedial servitude is terminated by:

• Agreement A bilateral notiarial deed is required.


• Abandonment. At present the practice is to call for a notarial deed between the parties as there is no provision for cancellation on application, as in the case of personal servitudes which have been abandoned (section 68). If the owner interested cannot obtain the signature of the holder of the servitude he/she must apply to Court.


• Expiration of Time Since servitudes may be for a limited period, there is no reason why a praedial servitude cannot terminate on a certain event. In this case the procedure is an application plus proof of any relevant facts (see section 76(1)bis).


• Merger If the same person becomes the owner of both the dominant and servient property then the servitude lapses. A request by the Conveyancer is generally accepted and the deeds endorsed on registration.

Allen West
Head of Deeds Training
Pretoria