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The expropriation of unregistered servitudes

A servitude is a right which one person has over the property of another. Servitudes are either personal or praedial and one of the most common forms of personal servitudes are usufructs which allow the usufructuary the right to enjoy the "fruits" (the produce or income) from property owned by another.
Usually this right will persist until the death of the usufructuary. Other forms of personal servitudes are usus (the right to use a property) and habitatio (the right to live in or on a property).

Praedial servitudes vest a right in one property ("the dominant tenement") over another ("the servient tenement") and may be exercised by the owner of the former. Thus a servitude of right of way entitles the owners of the dominant tenement to traverse the servient tenement and similar rights may relate to grazing, irrigation and aqueduct. In each case, the owner of the dominant tenement can exercise the right in question for as long as the servitude exists which could be for an unlimited time.

Registered servitude is binding

For the most part, servitudes are created by an agreement which must be reduced to writing, executed before a notary public and then registered in the Deeds Office. A registered servitude is binding not only on the parties concerned, but in the case of praedial servitudes, on all successors in title to the servient tenement and on third parties. Servitudes are not invalid if not registered, but in such cases, are generally binding only on the actual parties to the agreement. A praedial servitude will also bind successors in title to the owner of the servient tenement provided that the existence of the servitude is disclosed to the successor before he/she acquires the property.

If a property is subject to an unregistered servitude and the property is expropriated by the State, the servitude falls away without any compensation being payable to the owner of the dominant tenement or the holder in terms of the Expropriation Act, 1975. If the servitude is registered it remains in force unless it, too, is expropriated from the holder who is then entitled to claim compensation for the financial loss which he/she will suffer.

Accordingly, although registration of a servitude does not prevent it from being expropriated like any other property, it does protect the right of the servitude holder to claim compensation.

About Dylan Bradford

Dylan Bradford is a candidate attorney in the property & conveyancing department of Garlicke & Bousfield.

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