Servitudes

What is a servitude?

Servitudes are limited real rights, that give the holder certain defined and limited rights of use and enjoyment over someone else's land. A servitude can either allow the holder to exercise some limited right in respect of the land, known as positive servitudes, or the holder can prevent the owner of the land from exercising an ownership right, known as negative servitudes. Servitudes are further defined as granting a real right of use (praedial) if they exist in favour of the owner from time to time of another piece of land. Alternatively, servitudes grant a personal right if they exist in favour of a particular person.

Implied servitudes

In terms of section 28 of the Sectional Titles Act 95 of 1986 (“the STA”), there are implied servitudes that operate between sections in a scheme, and between sections and the common property.

In terms of the Act, each section is entitled to be supported by any other section, and any areas of common property, which is situated beneath it, or next to it, and which is capable of supporting it. Each section is further subject to, and entitled to, a right of way through other sections and the common property, to allow water, sewerage, drainage, gas, electricity, artificially heated or cooled air, and other services including telephone, radio and television services, to pass through other sections and the common property, on their way to a section that makes use of these services.

These implied servitudes are deemed to be included in the title deeds of the relevant owners. They confer on these owners the right, to be exercised by the body corporate, to have access to each section and the exclusive use areas, from time to time, during reasonable hours, to the extent necessary to maintain, repair or renew any part of the building, or any pipes, wires, cables or ducts therein, or for making emergency repairs necessary to prevent damage to the common property or any other section/s.

Creation of servitudes

In terms of section 29 of the STA and section 5(1)(g) of the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”), the body corporate may, by special resolution of its members, enter into a servitude, or other restrictive agreement, either burdening or benefiting the common property.

An example of a servitude burdening the common property, would be the right of an adjoining landowner (of another scheme or conventional property) to walk or drive across the common property, to a roadway on the other side of the scheme, from his own property. Whereas, a servitude benefiting the common property might allow any owner in the scheme to walk or drive across the property of an adjoining landowner, to a roadway on the other side of that adjoining property.

The above being a brief explanation of servitudes, granting limited rights of use and enjoyment over another’s land, should you have any queries relating to this topic, contact us at [email protected] or on 021 686 3950.