Before buying a property or submitting your building plans to the Town Council you should inspect the Title Deed, because failure to do so could become a costly exercise. The Title Deed will indicate all the registered servitudes and restrictive conditions applicable to the specific property.
A few of these urban servitudes are discussed below:
- The right of the owner of the dominant stand to prohibit the erection of buildings on the servient property either at all, or beyond a certain height, or the right to an open view or the right to access of light, which restricts the servient property from impeding the view/light by buildings or trees.
- The servitude of support is the right to require one’s neighbour to support the weight of one’s house or wall or the right to drive a beam into one’s neighbour’s building. This could also be a reciprocal servitude and prevents either owner from demolishing his or her building and thus withdrawing the support which the other building receives from it. The owner of the servient stand is bound to keep the wall concerned in a good order at his own expense.
- The right to build on the servient property, for instance, to have a veranda encroach upon it or to have a balcony into its airspace.
- The right to receipt or non-receipt of dripping rainwater or water coming from a stream, or the right to have a rainwater drain discharging water onto the neighbour’s stand.
- Right of way is the right to walk across another person’s property or to drive a vehicle across it.
The rights and duties of the owners of the dominant and servient properties
The rights and duties depend on the agreement constituting the servitude, which will be strictly interpreted in a manner which is least burdensome for the servient property. The owner of the dominant property must exercise his rights with due regards to the rights of the other party, which means that the servitude must be exercised in a proper and careful manner so as to cause the least inconvenience to the servient owner. This does not, however, restrict the owner of dominant property in the exercise of his or her rights merely because in doing so he or she will prejudice the owner of the servient property. Since a praedial servitude runs with the land any person who occupies the dominant property may exercise it. However, the owner of the dominant property is not permitted to assign his or her servitude for the benefit of another property than the dominant property.
The general rule is that a servitude cannot impose an active or positive duty on the owner of the servient property. There are only two exceptions to this rule, namely the servitude to compel the owner to construct a building of a certain height, and the servitude which imposes a duty to keep the wall in a good state of repair.
Termination of these servitudes
- By agreement: A servitude may be terminated by agreement between the parties, which needs to be registered in the Deeds Office to bind subsequent purchasers.
- Abandonment: For example the failure to object to the erection of a fence or the closure of a road.
- Prescription: A positive servitude is lost if the holder fails to exercise his or her rights for an uninterrupted period of 30 years; however, this is not the case with a negative servitude.
- Destruction of either of the properties.
B. RESTRICTIVE CONDITIONS
These are statutory restrictions imposed on the owner of land in pursuance of specific township establishment legislation and registered against the Title Deeds of the stands for the reciprocal benefit of owners, and for the purpose of restraining the specific character of the neighbourhood.
A few Township conditions are mentioned here:
- The erf is subject to a servitude for sewerage or other purposes along one or two boundaries.
- No large-rooted trees may be planted within the servitude area.
- No buildings or other structures may be erected within the servitude area.
- The local authority shall be entitled to deposit temporarily on the land adjoining the servitude such material as may be excavated during the construction, maintenance or removal of sewerage works.
- Proposals to overcome detrimental soil conditions shall be contained in the building plans submitted for approval.
- The design of all structures and buildings to be erected shall be approved by a structural engineer.
- Except with the written approval of the authority the roofs of the buildings shall be of tiles, slate or thatch.
- No shop, factory or industry may be erected on the erf.
From this it is clear that restrictive conditions can play a definite role in determining the character of a township, as well as have certain economic implications.
Other restrictive conditions that may be contained in Title Deeds
- Restriction to subdivision of land
- Conditions relating to the use to which the stand may be put
- Conditions restricting the alienation of the land
Restrictive conditions may be removed or modified in one of the following ways:
- By agreement.
- By application to court.
- The Administrator has the power to alter, remove or suspend certain restrictions or obligations binding an owner of land in his/her province.
- The Minister of Public Works may consent to the amendment or cancellation of conditions registered in Title Deeds.
- Provincial legislation contains procedures to remove restrictions on the subdivision of land or the purposes for which the land may be used.
There are a few others that will not be discussed here.
In light of the above it’s imperative that one should carefully study the Title Deed before buying a property or building.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.