What is a servitude?
In order to explain the concept of a servitude, let’s first look at the right of ownership. Ownership is a real right which grants the owner of either moveable or immovable property the most comprehensive control over his property to deal with is as he sees fit. The real right of ownership grants the owner the right to use, alienate, possess or destroy the property or thing he owns.
A servitude is also a real right, which grants the holder of such right certain entitlements in the moveable or immoveable property belonging to another. In other words, a servitude can limit the owner’s right in the immoveable or movable property he owns.
A servitude can grant a positive or negative right. If the servitude entitles the holder thereof to exercise some right or benefit over the property belonging to another, it is a positive right. If the servitude prohibits the owner of the property from exercising one or more of his rights of ownership, it is a negative right.
THE DIFFERENCE BETWEEN A PERSONAL RIGHT AND A REAL RIGHT
A servitude can be a personal or a real right and as such it is important to understand the difference between these two respective rights.
PERSONAL RIGHTS, are very often found or created in contracts. It is a right that exists between two persons and which is binding on such two persons. The one party thus has the right to some form of performance and the other party has a duty to perform.
REAL RIGHTS, are absolute rights and enforceable against the whole world. It relates to the holder’s ownership in a thing. A real right is binding and enforceable against the owner and his successors in title. Examples of real rights are: registered ownership of land and registered personal or praedial servitudes.
THE DIFFERENCE BETWEEN PERSONAL AND PRAEDIAL SERVITUDES
As stated above, both registered personal and praedial servitudes are real rights and are enforceable between the parties concerned and against third parties. The distinction between these servitudes are that a personal servitude is in favour of a particular person and a praedial servitude is in favour of a certain property.
PERSONAL SERVITUDE, is a servitude registered in favour of a particular person against land belonging to another. The land over which the personal servitude is registered is known as the servient tenement. The holder of the personal servitude enjoys the rights in terms thereof in his personal capacity. A personal servitude is usually registered for the lifespan of the holder thereof or form a limited period.
PRAEDIAL SERVITUDE, is a servitude registered in favour of one property against or over another property, belonging to someone else. There are thus two properties involved. The property in which favour the servitude is registered is known as the dominant tenement and the property against or over which the servitude is registered is known as the servient property. In light of the fact that a praedial servitude attaches to a property, it usually continues in perpetuity and as such it can pass to the owner of the property’s successors in title.
In this issue:
- What is a servitude?;
- The difference between a personal right and a real right;
- The difference between a personal servitude and a praedial servitude; and
- Characteristics and examples of personal and praedial servitudes.
CHARACTERISTICS AND EXAMPLES OF PERSONAL AND PRAEDIAL SERVITUDES
The characteristics of PERSONAL SERVITUDES are:
- It is inseparably linked to the holder;
- It cannot be transferred, ceded, alienated, or inherited; and
- It lapses on the death of the holder or, when the holder is a juristic person, when it seizes to exits or after a hundred years.
Some of the most recognisable personal servitudes are:
¨ Use (Usus) – granting the holder the right to use the property of another for his and his household’s benefit;
¨ Habitatio – granting the holder he right to live in or occupy someone else’s house;
¨ Ususfruct – granting the holder the right to use another’s property as well as the right to collect the proceed thereof;
¨ Right of pre-emption – gives the holder a preference to all other persons, to purchase property belonging to another. The owner, should he wish to sell, must offer the property to the holder first.
¨ Fideicommissum – is created by way of a Will or Testament, in terms of which the testator bequeaths his property to a legatee (known as the fiduciaries), subject to the condition that upon the legatee’s death or some occurrence, the property must be transferred to another specified person (known as the fideicommissarius.
The characteristics of PRAEDIAL SERVITUDES are:
- It is a servitude held by one property over another;
- The property entitled to the benefit is known as the dominant tenement;
- The property burdened by the servitude is known as the servient tenement;
- A person has a right to a praedial servitude, only in his capacity as the owner of the dominant tenement; and
- It can be created for a limited time period or in perpetuity.
There is no fixed number of praedial servitudes. Some examples are:
¨ Right of way;
¨ Right of encroachment;
¨ Right of conduction of electricity; and
¨ Right of aqueduct.