Understanding Servitudes in SA Property Law

What is a Servitude?

In South African property law, a servitude is a legal right granted to a person or entity to use another person's land for a specific purpose. This right is registered against the property’s title deed and remains in force even when ownership of the property changes. Servitudes can be either personal or praedial.

Types of Servitudes

Personal Servitude ‍

This type of servitude is granted to a specific person and is not tied to a property.

It terminates on the death of the holder, by an agreement between the parties, on expiry of the agreed term, by court order or by merger (when the holder also becomes the owner of the property).

Example: A usufruct, where a child allows their parent to live in and use a house, but ownership remains with the child.

Praedial Servitude‍

This servitude benefits one property (dominant property) while burdening another (servient property).

It terminates by an agreement between the parties, waiver by the owner of the dominant property, on expiry of the agreed term, by court order or by merger (if one person becomes owner of both properties).

Example: Right of way servitude, where a neighbour is allowed to cross another person’s land to access a public road.

‍Examples of common Servitudes in South Africa

• Water Servitude: A property may have the right to receive water from another property through pipes or canals.

• Building Restrictions: Some properties may have servitudes preventing owners from building above a certain height to protect scenic views.

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Let’s look at a few benefits of Servitudes

1. Facilitates access: Servitudes such as right of way allow individuals or businesses to access roads or essential services without obstruction.

2. Creates or enhances property utility: Water servitudes, for example, ensure that properties have necessary water access, enhancing their usability.

3. Provides legal certainty: Registered servitudes provide clear legal guidelines on land use, reducing disputes between landowners.

4. Preserves aesthetic or environmental conditions: Building restriction servitudes can help maintain scenic views or environmental balance in an area.

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Servitudes can also create risk and place additional responsibilities on the owner:

1. Potential land use limitations: A servitude may restrict how a landowner can use their property, limiting development or business opportunities.

2. Property value impact: Certain servitudes, especially burdensome ones, may decrease property value as they impose obligations on the servient property.

3. Disputes and legal costs: Disagreements over servitude rights, usage, or obligations can lead to costly legal disputes.

4. Maintenance obligations: Some servitudes, such as road or water servitudes, may require maintenance costs that burden either the dominant or servient property owner.

In property law, servitudes are important as they balance the landowners’ right to use land in ways that benefit their needs while protecting the rights of others. While they offer several benefits, such as facilitating access and enhancing property utility, they also come with risks, including potential property devaluation and legal disputes. We welcome you to consult with our team of conveyancers to help you identify any existing servitudes and guide you accordingly before you make an offer to purchase property.

Written by: Maret Carroll
Moderated and approved by: Rohula Kgabu