A person other than the legal owner of immovable property in South Africa usually does not have any rights in respect to that property. But servitudes can give others real rights over the immovable property.
For instance: A person who does not own a property does not have the right to build stuff on the property, use the water on the property, or even drive over the property.
But these rights can be registered against the title deed of a property, if the owner of the property grants someone else the right to do something in respect to the property. These rights are called "limited real rights" or servitudes. So, to be clear, a limited real right or servitude is a registered right in favour of one person over the immovable property of another person.
Limited real rights restrict the owner's use of his immovable property, because he/she cannot do stuff that will impede or interrupt the other person from exercising their limited real rights. So, limited real rights limit the rights of ownership of the property.
Buying a Property with Servitudes
When a property is sold, the limited real rights or servitudes registered against the title deed stays valid. The property is always sold "subject to" the limited real rights or servitudes, whether the buyer was aware of those servitudes or limited real rights, or not.
Unless the holder of the servitude or limited real right agrees to the cancellation of the servitude or limited real right, they are binding on the new owner of the property. The new owner is bound to honour and observe the registered servitudes and limited real rights over the property.
Do you get how important it is for a buyer to make sure of the limited real rights registered over a property before buying?
Examples of Servitudes
Farms are often subject to servitudes or limited real rights in favour of persons other than the owner of the property.
One of the common examples of such a limited real right over property is a right of way in favour of a neighbour. A right of way gives that neighbour the right to cross the property. This does not mean that the neighbour can go and gallivant anywhere he/she likes on the neighbouring farm, though. Usually there is a specific road or track that is assigned for this right of way.
Eskom also relies on servitudes for their right to erect power lines and for maintaining them. So, if there is an Eskom power line on a property, it is safe to assume that a servitude or limited real right exists in favour of Eskom.
Some farms also have servitudes or limited real rights registered in favour of neighbouring farms, in respect to access and use of water. Now, this access to water was not part of the deal, way back, when the Voortrekkers settled on farms.
I think a lot of the limiter real rights in regard to access to water stem from subdivisions of the land, to allow different children to each inherit a piece of the family farm. And to be seen as fair divisions of the estate, portions without natural water access were given limited real rights to the water on the other portions (sometimes called "vee suipings" in Afrikaans).
But we all know that blood is thicker than water. So those limited real rights that gave the owner's brother access to the water on a property you buy, can be a nasty surprise.
Servitudes and limited real rights also occur in title deeds for residential property inside a township area. A limited real right that allows the local municipality to provide water, electricity and sanitation services to neighbouring properties are almost standard in all residential erven.
Servitudes and Property Value
The fact that another person has a registered limited real right or servitude over a property limits the owner's use of the immovable property and will negatively affect the value of the property.
On the other hand, if the owner of a property has a registered limited real right or servitude over another property, it will positively affect the value of his/her property. The value of the property increases because the servitude adds some kind of privilege or functionality to the property.
The existence of registered limited real rights or servitudes over a property, or in favour of the owner of a property can affect a buyer's decision to buy the property or not, or how much the buyer might be willing to pay for the property. So, it is important for buyers and real estate agents to make sure of the servitudes or limited real rights registered against the title deed of a property if they have any reason to believe that a servitude might exist.
Personal and Praedial Servitudes
There are two main types of servitudes, namely personal servitudes and praedial servitudes.
The main distinction between these two types of servitudes is that a personal servitude is a limited real right in favour of a specific person, while a praedial servitude is a registered real right in favour of a person in his/her capacity as the owner of a specific property.
A personal servitude of right of way can thus be granted in favour of Mr Piet Poggempoel. And Piet will be able to make use of that right of way for the duration of his life. But if dear Mr Poggempoel decides to sell his property, the new owner will not have the benefit of the same right of way. The right of way was granted to Piet in his personal capacity, not in his capacity as owner of the neighbouring property.
But if a praedial servitude of right of way had been granted to Piet, in his capacity as owner of the neighbouring property, the new owner of the property would have the same right of way over the other property.
The implications for property value because of personal servitudes and praedial servitudes are not as clear-cut as it seems. The effect of praedial servitudes on property value is the easier one to calculate, because it remains constant over successive ownerships. But the effect of personal servitudes over property values depend on stuff like the life expectancy of the holder of the limited real right and the likelihood of the alienation of the servitude holder's property.
Usufruct
Usufruct is a type of personal servitude, which is commonly used in wills. I think the Afrikaans term "vruggebruik" is very a descriptive term, which might be easier to grasp than "usufruct".
A usufruct grants a person (who is not the owner of the property) the right to occupy the property, and enjoy the fruits thereof. This means that the usufruct holder is entitled to the rental income from a property, should they not choose to occupy the property.
The owners of the property may sell or let the property at any time, subject to the usufruct. But this makes a sale of the property at a price close to those achieved by other properties that are not subject to a usufruct, highly unlikely.
The value of a property, which is subject to a usufruct, is once again negatively influenced by the registered limited real right. But exactly how much the property value is affected depends on the life expectancy of the usufruct holder, because the usufruct automatically terminates upon the death of the usufructuary.
Subject To Servitudes Clause
Agreements of sale of immovable property sometimes contain a clause that states that, "...the Property is sold subject to all conditions and servitudes recorded in the title deed for the property". But it is not really nessessary, because the South African property law provides that a property is always sold subject to the servitudes and other real rights contained in the title deed.
The holder of a limited real right has to specifically agree to the cancellation of such servitude or limited real right, if that is a requirement of the sale. In my opinion, it is more important for a buyer to ensure that a "Title Deed Contingency Clause" is included in the contract of sale, than having a Subject To Servitudes Clause in the agreement.
Servitudes
Servitudes or limited real rights are aspects of immovable property that can have a huge impact on an owner's use of the property. And servitudes or limited real rights stay binding on a new owner of a property, even if the owner did not know about the servitudes at the time of buying the property. So, it is very important for a prospective buyer of a property to find out exactly what servitudes are registered against the title deed of the property he/she intends to buy, as well as what limited real rights he/she will be entitled to, in the capacity as owner of the property.
