When it comes to property law, servitudes are a critical component that governs the use and enjoyment of property. Servitudes are rights that one person has over another’s property, and they can either benefit or burden the owner of the property. In this blog post, Kruger Inc’s Louis Kruger and Rohann Derks-Stander explain the different types of servitudes and their impact on property use and value.

Personal Servitudes

A personal servitude is a right that one person has over another’s property that benefits the holder of the servitude, and not the property itself. This type of servitude does not confer ownership or possession of the property to the holder of the servitude, but rather the right to use and enjoy the property in a specific way. A common example of a personal servitude is a right of way, which allows the holder of the servitude to pass through someone else’s property to get to their own property. Personal servitudes can also include usufructs, which give the holder the right to use and enjoy the property, and to derive income from it as if they were the owner. The holder of a usufruct does not have the right to sell the property or make any changes to it that would significantly alter its character or value. These servitudes are not perpetual and are usually created for a specified period, alternatively for the lifetime of the servitude holder.

Praedial Servitudes

Praedial servitudes are rights that one property has over another property, and it benefit the property itself rather than any particular person. These servitudes can either be positive, allowing the property owner to do something on the servient property, or negative, preventing the property owner from doing something on the servient property. One example of a positive praedial servitude is a right to draw water from a neighbour’s borehole, while a negative praedial servitude can include a right to prevent a neighbour from building on their property, which would block the view from the other property. Praedial servitudes are often created when a property is subdivided, and the owner of one portion of the land needs to access or use another portion of the land. The servitude is then registered against the title deeds of both properties, and it will continue to apply even if the properties are sold to new owners. It may lapse by either effluxion of time or when the properties are consolidated. It may also be cancelled by agreement between the owners of the properties.

Public Servitudes

Public servitudes are created in favour of the general public and are not registered in favour of a specific person, legal entity or other immovable property. An example of such servitude would be a public road.

Servitudes are an essential component of property law in South Africa, and they govern the use and enjoyment of property. Personal servitudes benefit a particular person, while praedial servitudes benefit the property itself. It is important to understand the different types of servitudes that are recognised in South African law, as they can have a significant impact on the value and use of a property. If you are buying or selling a property, it is essential to ensure that any servitudes that apply to the property are fully disclosed and understood.