Tread the servitude minefield carefully

Source: Sunday Tribune

If you do not insist on seeing a copy of the title deeds and surveyor-general’s diagram when buying vacant land, your plans to build that dream home could become a nightmare.

Both documents will tell you if there is a servitude on the property. The presence of a servitude makes it impossible to build within its area.

Mark Beckett, chief executive officer of Bond Choice Home Loans, said existing buildings on properties tended to be correctly aligned in terms of servitudes. However a problem arose with vacant plots, many had servitudes on them.

“There are many types of servitude applications and limitations. Among them is that one would not be able to erect any building within the servitude area,” said Beckett.

South African law allowed for ownership of parts of land or buildings by either personal or praedial servitudes which were registered against the title deed of the property, said legal expert Bruce Forrest.

Basic land rights included servitudes, and this allowed the local authority access to a property for a number of reasons, including the inspection or installation of pipes, road building, sewerage pipes and electricity cables.

Walk across

“The holder of a personal servitude can exercise a right in another person’s property, or prohibit someone else from exercising his normal ownership rights,” said Forrest.

“These rights include the right of way, which may take the form of the right to walk across another person’s land, or even to drive cattle or vehicles across it.

“A land owner whose property is hemmed in by other land to such an extent that he cannot access a public road and is compelled to cross adjoining privately-owned land, may also claim servitude rights.”

Forrest said urban servitudes included servitudes of light, view, projection, affording support and discharging water on to another person’s property.

“This means that one person may have the right to access light from another’s land, unimpeded by buildings or trees. A view servitude can restrict the rights of the owner of the property to block the view in any way, whether by buildings or trees and, as in the case of a light servitude, it may prevent the owner of the other property from raising the height of buildings on his land. A support servitude can require your neighbour to support the weight of your own building, or give you the right to drive a beam into your neighbour’s building.”

He added: “The right of projection is the right to have a balcony or another projection over a neighbour’s land. Then there is the right to water, which can include the right to receipt or non-receipt of dripping rain-water, water coming down in a stream and the right to have an artificial pipe or canal crossing a neighbour’s land.”