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Property Servitudes may pose serious impediments to your intention to use a property. It is critical that you research this aspect before making the decision to purchase immovable property.
The right a person has over the immovable property of another person is called a servitude.
As a general rule, this person with said right is then entitled to do something on the property, and may also be empowered to prevent the owner from exercising uninhabited ownership such as restricting the height of buildings on the property.
The three main types of servitudes include praedial, personal, and public servitudes.
A praedial servitude is a limited real right constituted in favour of the owner of a property in his capacity as owner.
It entitles one property owner to exercise a right on the property of another, or to prohibit another property owner from exercising a normal ownership right.
However, there must be at least two properties involved in the servitude to be a praedial servitude.
Examples of such a servitude are a right of way or a servitude that restricts the erecting of a building above a certain height that may obscure the view of the holder of the servitude, and which may negatively affect property values.
Praedial servitudes can either be granted for a short-term period or they could last indefinitely.
A personal servitude is a limited real right constituted in favour of the holder in his personal capacity to exercise a right on the property of another person, or to prohibit the property owner from exercising a normal ownership right.
How this servitude differs from praedial servitudes is that two properties do not have to be involved as the holder is entitled to the rights in his personal capacity.
Examples of personal servitudes are usufruct, usus and habitatio.
Definition: Usufruct is the right to enjoy the property of another and to draw from that property all the profit, utility and advantage which it may produce.
The usufruct holder may dispose of the right to use and enjoy the property and its fruits to another party (for the duration of the usufruct), by sale, lease or loan and is entitled to all production of the land and all profits and revenues derived from the property.
The property may only be used in the manner in which it was intended, unless a new manner of exploitation would be considered sensible under the specific circumstances.
The holder of a right to usus is restricted to the use of the property by the holder him or herself. The fruits of the property may only be taken for the holder and his or her family’s daily needs.
The fruits may therefore not be sold nor the property leased out by the beneficiary, exceptions may occur under specific circumstances.
The right to habitatio is applicable to a dwelling. The holder has the right to dwell in a house with his or her family and may lease or sublease the property. A diagram needs to be submitted to the Deeds Office when a right to habitatio is registered except in the case of a sectional title unit in which case the registered sectional plan will suffice.
Personal servitudes cannot be granted indefinitely and so are usually linked to a period or the lifetime of the holder of the right. Personal servitudes in favour of a legal person, such as a company, terminate after a 100 year period.
Both praedial and personal servitudes are usually created in a contract between the parties.
However, in order for them to be effective against third parties registration of the servitude against the title deed of a property is required.
This can be done by executing a notarial deed which is then lodged at the Deeds Office and the servitude is then endorsed as a condition on the title deed of a property.
A servitude can also be created by means of a reservation in a deed of transfer when immovable property is transferred.
On the other hand, a public servitude is created in favour of the general public, it is not praedial as there is only one immovable property involved and it is not personal as it is not in favour of a specific individual, but the public in general. An example would be a public road.
We are happy to help you make sense of any property restrictions. Contact us to arrange a consultation.
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