Property Law Servitudes
Dear Madam,
Praedial servitude – limited real right
The servitude pertinent to this matter is a praedial servitude, relating to two pieces of land, adjacent to each other. A paedial servitude is established over the servient property (The Trust) for the benefit of the dominant property (UCT) in perpetuity. A right of way typically confers a real right to benefit from the property of another. It affords powers of use and enjoyment to someone other than the owner. Section 63(1) of the Deeds Registry Act tells us that limited real rights are capable of registration. This particular right of way, in favour of UCT, is therefore enforceable against the Trust as it appears to satisfy the requirements for a valid praedial servitude and subsequently has been registered accordingly.
Further, the two-fold test, as set out in the case Ex parte Geldenhuys confirms the nature of this right of way as being real. This is because the correlative obligation i.e. to allow use and enjoyment of the footpath, subtracts from the lands dominium and there is no evidence to suggest that either UCT or the Trust dispute the fact that there is intention to bind successors in title. We are thus able to conclude that this right of way, which exists over the footpath, constitutes a rural praeidal servitude.
The Maintenance Provision
From the facts, the maintenance provision represents a personal right because it binds the Trust to perform to UCT, ‘compelling the trust to maintain the footpath and the stile’. This is distinguishable from the aforementioned right of way, which pertains to property as the legal object and is enforceable against the world at large. The object of the right entails the rendering of a performance. This does not amount to a curtailment of the land in the physical sense and therefore does not pass the first part of the two stage test. The maintenance obligation rests on an uncertain future event, namely that damage occurs to the footpath. The obligation to
Praedial servitude – limited real right
The servitude pertinent to this matter is a praedial servitude, relating to two pieces of land, adjacent to each other. A paedial servitude is established over the servient property (The Trust) for the benefit of the dominant property (UCT) in perpetuity. A right of way typically confers a real right to benefit from the property of another. It affords powers of use and enjoyment to someone other than the owner. Section 63(1) of the Deeds Registry Act tells us that limited real rights are capable of registration. This particular right of way, in favour of UCT, is therefore enforceable against the Trust as it appears to satisfy the requirements for a valid praedial servitude and subsequently has been registered accordingly.
Further, the two-fold test, as set out in the case Ex parte Geldenhuys confirms the nature of this right of way as being real. This is because the correlative obligation i.e. to allow use and enjoyment of the footpath, subtracts from the lands dominium and there is no evidence to suggest that either UCT or the Trust dispute the fact that there is intention to bind successors in title. We are thus able to conclude that this right of way, which exists over the footpath, constitutes a rural praeidal servitude.
The Maintenance Provision
From the facts, the maintenance provision represents a personal right because it binds the Trust to perform to UCT, ‘compelling the trust to maintain the footpath and the stile’. This is distinguishable from the aforementioned right of way, which pertains to property as the legal object and is enforceable against the world at large. The object of the right entails the rendering of a performance. This does not amount to a curtailment of the land in the physical sense and therefore does not pass the first part of the two stage test. The maintenance obligation rests on an uncertain future event, namely that damage occurs to the footpath. The obligation to