Many SA farmers have praedial servitudes on their lands. This means that someone else has a right to use part of the land. Karl van Rensburg of the SA Geomatics Institute explains the implications.
The word ‘praedial’ simply means ‘relating to land’. According to SA property law, a praedial servitude involves at least two pieces of land, one of which serves the other. They are vested in the successive owners of one piece of land (the dominant tenement) who derive a benefit from another piece of land (the servient tenement) belonging to someone else. Put more simply, the owner of one piece of land has a right to use part of the property of another person (the servient) for his or her business, rather than merely in a personal capacity. A servitude such as this remains attached to the land, irrespective of whom the landowner is. It has to be registered against the title deeds of the properties in question.
The rights and duties of the dominant and servient owners depend on the terms of the specific agreement that constitute the servitudes. However, the following rules apply to praedial servitudes in general:
- The owner of the servient property may exercise all the usual rights of ownership, but may not impair the rights of the dominant property. For example, in the case of a right-of-way servitude, the owner of the servient property can use it for gardening, agriculture or parking, as long as this activity does not hamper the owner of
the dominant property’s access to the servient property.
- The dominant property owner is entitled to perform all acts necessary for the proper exercise of the servitude, while causing as little inconvenience as possible to the owner of the servient property.
- The owner of the servient property cannot be obliged to erect or maintain infrastructure, such as a gate, fence, water furrow, wall or road, for the benefit of the dominant owner. These actions must be carried out by the dominant owner.
Most praedial servitudes are the result of an agreement between two parties on the extent of the servitude rights, the period that they will remain in force (not necessarily in perpetuity), and the amount to be paid by the dominant party to the servient party for allowing the creation of the servitude. The state may also stablish a servitude, as in the case of land on which a road, power line or pipeline is to be built.
Servitudes can be created either by notarial deed or on transfer. If a notarial deed is to be registered, a land surveyor will produce a servitude diagram. If a portion
of land is to be transferred, a servitude over a subdivision or the remainder can be represented on the subdivisional diagram. A servitude can be created without a diagram. A common example is where a servitude of right-of-way of specified width is created along the entire length of one boundary of a property. If you are unsure whether a servitude is registered over a property, examine the title deed and the records of the Surveyor General. A land surveyor can help you with this and, if necessary, issue a servitude report.
Email Karl van Rensburg firstname.lastname@example.org.
50 farmer’s weekly 1 DECEMBER 2017