A servitude is a limited real right which entitles its holder either to the use and enjoyment of another person’s property or to insist that such other person shall refrain from exercising certain entitlements following from his or her right of ownership over and in respect of his or her property which he or she would have if the servitude did not exist. Pertinent to this article is a praedial servitude which pertains to two pieces of land that are in close proximity to, or next to one another. A praedial servitude constitutes a burden imposed on one piece of land (servient owner) in favour of another piece of land (dominant owner).
The relationship arising from the exercise of servitude is fraught with tension that often develops into disputes between the servient owner and the dominant owner. The approach developed by our courts in resolving such disputes is reliance on the principle of civiliter modo. The dominant owner must exercise the servitude civiliter modo, in a civilised and considerate way. The traditional view is further that a servitude cannot impose an active or positive duty (that is, a duty to do something) on the owner of the servient land unless the conditions are complementary or otherwise ancillary to a registration condition or right contained in the deed.
Remedies:
Rights and duties of the dominant and the servient owners, the nature and extent of the rights and duties of the owners of the dominant and servient tenement will depend on the terms and conditions of the agreement which constitutes the servitude. Both the dominant and servient owners may approach a court for a declaration of rights if either party exceed their right. It is in this context that the actio confessoria and actio negotoria are applicable. Actio confessoria is an action by the owner of the dominant tenement to enforce the terms of the servitude in circumstances where the owner of the servient tenement has failed to comply with the terms and/or provisions of the servitude. Accordingly, actio negotoria may be instituted by the servient owner if the beneficiaries claim greater rights under the servitude than they actually have.
Both parties can also rely on prohibitory interdict to prevent the other party from committing a particular infringing action or to stop this action if it has already commenced. This can include preventing the servitude holder from causing damage to the servient land or from erecting a gate that would deprive the servient owner of access to the land.
Reference list:
- G Muller, R Brits, J M Pienaar and Z Boggenpoel Silberberg and Schoema’s The Law of Property, 6th Edition, 2019.
- Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2002] ZASCA 137 (24 October 2022)
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)