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 render performance is a characteristic of a personal right and intention alone to bind successors in title does not convert this into real burden.
Furthermore, the court it Schwedhelm illustrates how servitudes are passive in character. They cannot impose an active or positive duty on the owner of the servient land. This is in accordance with the principle of passivity, which states that a servitude does not oblige the servient owner to render a performance. The nature of this obligation sought to be imposed upon the servient owner falls foul of the characteristics our law attributes to servitudes of this nature.
S 63(1) however states that personal rights may only be registered in exceptional cases, if, in the opinion of the Registrar, they are ancillary or otherwise complementary to registrable real rights. There is no evidence from the given facts to support a finding that the maintenance provision is so intimately connected to another registrable real right. The clause, can thus, not be reconciled with the nature of a servitude as a limited real right. In this case it was erroneously registered as a real right, and the passivity principle explicitely referred to Schwedhelm would invalidate such a clause owing to the positive obligation that is imposed on the servient tenement.
Having said this, if the maintencance clause was part of a separate contractual agreement, it would be legally binding on the contracting parties. This would however give rise to a personal right and could not be registered against the title deed. From the facts, the only agreement concluded is the ‘parking agreement’ and this makes no reference to any such obligation. Rather it is explicitely stated that the parking agreement itself contains no provision for maintenance of the footpath. The maintenance clause is therefore not binding on the Trust.
The nature and contents of the rights concerning the footpath: i. Civiliter modo
The contents of a particular servitude is...