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Legal Opinion - SA Court Judgement on Property Servitude Rights

New24

A servitude holder may not increase the burden to other users of a property servitude beyond the express and implied terms of such servitudes.

In giving his judgment, the judge said that all law in South Africa is “subject to the principle of reasonableness” and that those with rights (including property rights) must exercise them in a “civilised and considerate way”.

This was the summary made by the attorneys Smith Tabata Buchanan Boyes on a recent High Court case (Johl and Another vs. Breand and Others).

Drawing attention to this judgment, Lanice Steward, managing director of the Cape Peninsula estate agency Anne Porter Knight Frank, says the case had helped clarify the thinking on servitudes.

She says often back entrances to properties can render a property less secure.

When steps are taken to remedy these matters, they can then so easily be inconvenient to the legitimate users of such servitudes.

In this case the owner of the dominant property had a right of way over his neighbour’s servient property servitude.

Over the years the dominant owner increased the security measures on this servitude to the point where it was protected by two security gates, CCTV and an armed guard.

The second owner then found that he no longer had access to it from one of the points which he had traditionally used.

His application for a remote control to open the security gates was turned down by the first owner on the grounds that it increased the security risk – especially if, as was his custom, the fairly elderly second owner used the servitude for walking his dogs as was his practice.

In giving his judgment, the judge said that all law in South Africa is “subject to the principle of reasonableness” and that those with rights (including property rights) must exercise them in a “civilised and considerate way”.

In this case, the judge said the dominant owner had no legal entitlement to this servitude other than to use it as a right of way.

Imposing restrictions on the subservient owner was therefore an action which was beyond “the express or implied” terms relating to the servitude and in practice made the servitude the dominant owner’s exclusive use area.

The court therefore ordered that the second owner be given a remote control and allowed complete access to the property.

Steward says had this “principle of reasonableness” been more openly accepted at the outset in other disputes involving servitudes and similar matters, far less difficulty would have been encountered in reaching settlements.

She adds that this case sets a precedent for all property owners and helps reduce the domination of one party over another, which can so easily occur in property dispute matters.

Courtesy: SAPOA - The South African Property Owners Association

For more information contact:

The South African Property Owners Association
Tel: +27 11 883 0679/83
Cell: 082 332 7641
Website: http://www.sapoa.org.za