Servitudes and Cessions in South Africa

What Is a Servitude?

A servitude is a limited real right over immovable property. It restricts the owner of one property (the servient tenement) in favour of another property or person. The holder of the servitude is entitled to use the servient property in a specific, defined way but does not own it.

Servitudes are a fundamental feature of South African property law and appear in many common situations: a right of way giving a landlocked property access to a road, a right to lay pipes or cables across a neighbour's land, or a usufruct giving a surviving spouse the right to use a property for life.

Praedial vs Personal Servitudes

South African law recognises two main categories of servitude:

• Praedial servitudes benefit a particular property the dominant tenement. They are attached to the land and automatically pass to the new owner when the dominant property is sold. Common examples include:
  • Right of way (right to traverse the servient property)
  • Right of aqueduct (right to water from a source on the servient property)
  • Right to support (a building's right to be supported by an adjacent structure)
• Personal servitudes benefit a specific, named person rather than a property. They end when that person dies (or within the agreed term) and cannot be transferred. Examples include:
  • Usufruct: The right to use and enjoy the fruits of property
  • Usus: The right to use property (without taking fruits)
  • Habitatio: The right to occupy a dwelling

Why Registration Is Essential

A servitude that has not been registered at the Deeds Office is only a personal right it binds the original parties but is not enforceable against future owners of the servient property. For a servitude to be a real right (enforceable against the world), it must be:

1. Executed before a Notary Public as a formal notarial deed
2. Lodged at and registered by the Deeds Office

Only once both steps are complete does the servitude appear on the title deed of the servient property and bind all future owners.

The Role of a Notary Public

South African law requires that the deed creating or cancelling a servitude over immovable property be executed before an admitted Notary Public. A standard attorney cannot execute the deed only a specially admitted notary has this power.

The Notary Public:

• Drafts the notarial deed in the prescribed form
• Ensures all legal requirements are met and parties understand the deed
• Verifies the identity of all parties
• Executes the deed and attends to Deeds Office lodgment and registration

Cessions of Servitudes

A cession is the transfer of a right from one person to another. Where a personal servitude is ceded (in those limited circumstances where the servitude agreement permits cession), or where rights under a servitude are transferred, this also requires a notarial deed and Deeds Office registration. Cessions of praedial servitudes are generally automatic upon sale of the dominant property and do not require a separate cession instrument.

Cancelling a Servitude

When a servitude is no longer needed because the purpose has been fulfilled, the parties agree to terminate it, or the personal servitude holder has died a formal cancellation process is required:

1. The parties agree to cancellation (or the servitude has expired or terminated by operation of law)
2. The Notary Public prepares a notarial deed of cancellation
3. The deed is lodged and registered at the Deeds Office
4. The servitude is removed from the title deed

Until formally cancelled and removed from the Deeds Office register, the servitude remains on title and may affect the value or use of the property.