When you may legally use property belonging to someone else
A servitude is a right that one person has to use or enjoy the property of another person – other than by means of a lease or similar disposition.
Real or personal servitudes
A real servitude usually involves two pieces of land that are separately owned. A personal servitude grants certain rights to an individual for a specified period of time (at the longest, for his or her lifetime). Such a right may not be transferred by the person enjoying it to any other person or body. If you have the right of servitude to drive your cattle across a neighbouring farm that does not belong to you, your farm is the ‘dominant tenement’ and the other the ‘servient tenement’.
Registration of servitudes
Unless a servitude is registered against the title deeds of the properties in the Deeds Registry, it will not be binding on subsequent owners of the property except if they were aware of it.
Therefore, a farmer who has an agreement with a neighbour to draw water from the neighbour’s farm will not be able to exercise that right should the neighbour sell the farm – unless the farmer’s right to draw water is registered in the Deeds Registry against the title deeds of the farm. The reason for this is that it would not be fair to hold the new owner to an obligation about which he or she knew nothing.
Personal servitudes usually come into being as a result of a will or contract. (See contracts; wills.)
Creation of servitudes
Real servitudes may also be created by the state, as in the case of land on which a railway line is built. Most real servitudes are the result of an agreement between two parties on the extent of the servitudal rights, the amount to be paid by the dominant party to the servient party in consideration for allowing the creation of the servitude, and the period for which the servitude is to remain valid. The servitude comes into existence as a right only when it is registered against the title deeds of the servient property.
A servitude may be acquired by prescription: for instance, a landowner may prove having used a neighbour’s land for 30 years, say, by driving cattle across it without dispute. In such an instance, the landowner would be entitled to have the servitude registered against the title deeds of the servient property.
Either party is entitled to sue the other for damages if the rights of the agreement have been exceeded or if one has suffered loss. If no actual loss can be proved, an interdict may be obtained to prevent further breaches of the agreement. Either party may apply to court for a declaration of rights.
Although many rights can be registered as servitudes against title deeds, there are restrictions – the most important being that the servient owner cannot be obliged to do anything, such as erecting or maintaining a building, for the benefit of the dominant owner. All positive action must be on the side of the dominant owner.
While real servitudes can be divided into rural and urban servitudes, this distinction simply reflects the different areas in which the servitude operates.
Important rural servitudes are those relating to right of way such as the right of a farmer to cross the property of another. The dominant owner must exercise such a right in a reasonable way and not, for instance, drive cattle through a field on the servient farm simply because this is the shortest route.
The family, visitors and employees of a dominant owner may enjoy the same use of a right of way as the dominant owner. Neither party may change the route of the right of way without the other’s consent.
Way of necessity
Another form of right of way is the ‘way of necessity’. It does not require the consent of the servient owner, but will be granted if ‘absolutely necessary’. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity.
However, this cannot be claimed in order to shorten the distance to the road, nor can the dominant owner insist on being granted the shortest or easiest route across the servient property. A way of necessity may be changed when a servient owner offers an alternative route that is no less convenient.
Water servitudes permit the dominant owner to draw water from the servient property and to lead it across that land by means of furrows or pipes. The dominant owner may also have the right to water livestock on the servient property and to build a dam there. It all depends on what is registered against the title deeds.
Grazing servitudes may provide that a certain number of cattle may graze within a particular area of the servient property.
Other examples of rural servitudes include the right to gather or cut wood, to outspan cattle and to discharge water onto the servient property.
Window-right is probably the most typical urban servitude; it gives the dominant owner the right to have a window or opening in a wall which is on the servient owner’s boundary. Other servitudes prohibit or restrict building or ‘any action’ on the servient property that would obstruct the view from, or interfere with light reaching, the dominant property.
In areas of high rainfall there may be servitudes which give the right to divert water flowing from a roof, or across a dominant property, into the servient property. The opposite may apply in dry areas, where the owner of a servient property, which would be situated in a higher position than the dominant, may not interfere with the flow of water from his or her roof into the dominant property.
The right of support of buildings allows the owner of the dominant property to build a wall on the servient property or to rest a structural beam on it; the servient owner is obliged to keep this wall in good order.
The right of inserting beams or braces permits the dominant owner to have an anchorage in a building on the servient property. However, the servient owner is not obliged to keep the wall in good order to bear the weight.
A dominant owner has the right to allow a beam, a balcony, an eave or a roof overhang to project into the space above a servient property. A reciprocal servitude is one when two houses share a common wall which neither owner may demolish.
Restrictive covenants are a form of servitude regulating the use to which land in developing townships may be put. It might be stipulated that the area should be solely residential or there may be restrictions on businesses.
These apply to a specific person and are constituted for a fixed period – until a future happening or for the lifetime of the beneficiary.
Usufruct, or ‘use of the fruits’, is the most common personal servitude. It is frequently granted in the terms of a will allowing, for instance, a surviving spouse full use and occupation of a house or farm for the remainder of his or her life, although actual ownership has been bequeathed to another. A good example would be if a father left his farm to an eldest son, but gave his widow the right to live on at the farm.
Usufruct may be over moveable property or even money. In this case the usufructuary is entitled to receive interest on an investment but not to make use of the capital, which will revert to the owner. A servitude of habitation allows only personal occupation.
Termination of servitude
A personal servitude ends with the time specified. The parties to a real or personal servitude may end it by mutual agreement at any time. A real servitude is ended by destruction of one of the properties or when the need to exercise it no longer exists. If the owner of a dominant property buys the servient property, the servitude ends and does not automatically come back into being if one of the properties is later sold.