Notes for PROPETY LAW LU5 Lecture 1 Limited Real Rights Servitudes PDF

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Learning Unit 5: Lecture 1 Introduction to limited real rights and other rights in property 

Ownership is never absolute or unlimited

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Limited in the interest of the community (Neighbour law) and of holders of rights:  by statutory provisions; or  by limited real rights to the property; or  by personal rights against the owner of the property.

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A servitude is an example of how an owner’s ownership can be limited by the a limited real right of another person in respect of the thing

Servitudes and restrictive conditions 

A servitude is: (a)

a limited real right to the movable or immovable property of another person (owner);

(b)

which grants the entitled person (holder of the servitude) certain specific entitlements (usually the use and enjoyment);

(c)

and these entitlements limit the entitlements of the owner in respect of the thing in one way or another.

Example of a servitude: =Right of way

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Characteristics of a servitude: 1

1. The holder of a servitude acquires a limited real right in the property of an other legal subject, which can be protected and enforced against the owner and his successors in title with a remedy (action confessoria). 2. The holder of a servitude has the entitlement to use and enjoyment which must be respected and tolerated by the owner. The holder cannot expect the owner of the property to do anything positively as a result of the servitude. 3. It is not possible to acquire a servitude over your own property. 4. The servitude is not transferrable from the holder to another. 5. The holder must exercise entitlements reasonably (reasonable man).

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Categories of Servitudes Praedial Servitudes Types:

Personal Servitudes 1. Common law personal servitudes:

1. Rural praedial servitude:

-usufruct

A Right of way –  This includes the right of the owner of the dominant tenement to drive, walk, herd cattle and transport products over the servient tenement with reasonable bounds.  This also includes that visitors and members of the family of the servient tenement will have the same use 2. Urban praedial servitude The right of the holder of the servitude that his building may be supported by a building on the servient tenement 3. Statutory praedial servitude The right to dam, drain, store and lead water in terms of the National Water Act 36 of 1998

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 = personal servitude which, as a limited real right, grants the holder of the right to use someone else’s property (incl fruits) and to return the thing substantially intact to the owner on termination of the usufruct

-use  a limited real right in terms of which the holder of the right acquires the entitlement to use the property for the benefit of himself and his household while keeping it substantially intact -habitation  a limited real right in terms of which the holder of the right is entitled to occupy a home belonging to the owner while leaving it substantially intact. Kidson v Jimspeed

Enterprises CC 2009 (NGP): it was decided that the habitation right is not automatically terminated when the building it pertains to is destroyed. The right “revives” when the building is repaired or replaced, and the landowner must allow rebuilding. Unless it is clear that the holder of the right abandons it, the right of habitation does not terminate purely because of temporary absence. 2. Servitudes which resemble praedial servitudes 3. Statutory personal servitudes

Definition:

1. A limited real right

1. A limited real right

2. In the land of someone else (servient tenement)

2. to the movable or immovable property of someone else

3. Which grants the holder of the servitude certain entitlements of use and enjoyment 4.

In his capacity as owner of the dominant tenement

3. which grants entitlements (use and enjoyment) in respect of the thing 4.

Characteristics:

1. Only in respect of immovable property 2. Always 2 pieces of land – dominant and servient. The holder of the servitude = dominant tenement and he exercises the entitlements of use and enjoyment 4

to the servitude holder in his personal capacity

1. Accrues to the holder of the right in her personal capacity, but as it is a limited real right, it must meet the requirements for the creation and exercise of limited real rights.

See Erlax Properties (Pty) Ltd v Registrar of Deeds 1992 (A)

resulting from the servitude. 3. The limited real right vests in the holder of the servitude in his capacity as owner of the dominant tenement and not in his personal capacity. The successors in title of the owner of the dominant tenement are automatically entitled to the servitude. The servitude “runs with the land”. 4. The burden on the servient tenement is transferred automatically to the new owner (in his capacity as owner) when the land is transferred. It is therefore a burden on the property and is enforceable against the owner of the servient tenement and all his successors in title. 5. Praedial servitudes are perpetual (in principle) but can be made subject to a resolutive condition or term (Section 76(1)bis of the Deeds Registries Act 47 of 1937). 6. The dominant or servient tenements must be located next to or near each other 7. Utilitas requirement: a benefit which increases the value and usefulness of the dominant tenement must vest in the owner of the dominant tenement and his successors in title. See De Kock v Hanel 1999 C 8. Servitudes are indivisible in principle. The only exception is in the case of subdivision of the servient tenement which can lead to partial liberation since not 5

2. The servitude is not transferable (as = personal capacity). The holder of the servitude can allow other to exercise certain entitlements in terms of the thing, but this is terminated by operation of law. 3.

It is not a creditor’s right (despite the fact that it vests in the holder in her personal capacity and is not transferable) but it is a limited real right. The burden is on the property.

4. Can be granted against movable and immovable property. Since it vests in the holder of the servitude in her personal capacity, there is no dominant tenement. 5. In the case of a servitude of a holder over movable property the holder of the servitude may, usually, not consume the property but must return it after termination of the servitude, taking normal wear and tear into consideration. 6. In the case of movable property, a personal servitude can be granted orally. Personal servitudes in respect of immovable property are established by registration of the

all parts of the servient tenement normally serve the dominant tenement or not all parts of the dominant tenement normally derive benefit from the servitude. 9. The entitlements of the servitude holder can never be such that the owner of the servient tenement is compelled to perform a positive act. There can only be an obligation on the owner of the servient tenement to continue for the benefit of the holder of the servitude. See Low Water Properties (Pty) Ltd v Wahloo Sand CC 1999 (SEC)

servitude in the deeds registry 7. Personal servitudes terminate at the death of the holder of the servitude or on completion of the term for which the servitude was granted (whichever comes first).

10. Created thorough registration in the deeds office as a conditional clause or through a notarial deed

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Acquisition of Servitudes Ways of acquisition:

1. Registration of praedial and personal servitude in respect of immovable property in terms of the Deeds Registries Act 47 of 1937 6

2. Delivery in the case of personal servitudes in respect of movables (NB!) i.

In the case of a personal servitude

ii. Movable property must be made available to the holder of the servitude iii. In such a way that it enables him to exercise his entitlements iv. The owner of the thing at all times retains the intention to be the owner (animus domini) v. But the owner delivers the thing with the intention that the holder of the servitude can exercise his entitlements In these circumstances a written agreement is not required for the establishment of the personal servitude. An oral agreement just makes it more difficult to satisfy the burden of proof – Du Randt v Du Randt 1992 (E)

3. Statutory establishment (NB!) vi. Prescription – Section 2(1) and Section 6 of the Prescription Act 68 of 1969. The same requirements that govern the original acquisition of ownership bmo prescription . See 8.10 in textbook vii. Expropriation – Section 25 of the Constitution and Section 4 and 5 of the Expropriation Act. See 8.7 in textbook viii. Other legislation – Sectional Titles Act 95 of 1986 etc.

4. Creation by court order (NB!) i. Claim to way of necessity ii. The nature of way of necessity 7

iii. Determination of land over which way of necessity runs iv. Determination of route and width of way of necessity v. Compensation vi. Registration vii. Changed conditions

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Remedies Holder of Servitude

Owner of encumbered property

 Actio confessoria

 Actio negatoria 8

 Interdict

 Interdict

 Declaratory order

 Declaratory order

 Spoliation

 Delictual claim

 Delictual claim

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Termination of Servitudes i.

Fulfilment of condition or term

ii. Merger iii. Abandonment iv. Impossibility v. Prescription vi. Expropriation

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