“I applied to my municipality to have the building plans for the extension of my garage approved. The
municipality rejected my proposed extension on the grounds that it would be constructed over a servitude
registered against my title deed in favour of the municipality. What is servitude? Can I have it removed?”
Personal Servitude – Attorneys Port Elizabeth
What is the definition of Servitude?
A “servitude” is a limited real right registered in the Deeds Office against the title deed of the property of a
person in favour of another person or entity. The holder of the servitude (right) will therefore be entitled to
exercise some right on the property of another or prohibit the owner of the property from exercising some of
his ownership rights.
A distinction can be made between personal servitudes and praedial servitudes, of which the most
important difference is that a personal servitude is a right attached to a specific person to use and enjoy
another’s property and cannot exist longer than the lifetime of the person in whose favour it was registered.
The most commonly known personal servitudes are a usufruct, right to use, or the right to occupy the
A praedial servitude on the other hand is a right that is attached to the property itself (and not to a person)
and even though a change in ownership may take place, this servitude will continue to exist and can only
be cancelled by agreement between the parties. The most commonly known praedial servitudes are a right
of way, pipeline servitude, electrical substation servitude, and so forth.
A personal servitude can be created by agreement between the parties but in practice it is mostly provided
for in terms of a will in which a surviving spouse is given the right to occupy the property during their
lifetime. A praedial servitude is mostly concluded by way of an agreement between parties which sets out
the rights and responsibilities of each party as well as the consideration amount that the person in whose
favour the servitude is to be registered, will have to pay the owner of the property. The consideration
payable is usually in the form of a lump sum, but the parties are free to agree on a monthly or quarterly
payment, depending on the type of servitude.
Deeds Registries Act
The general rule is that both personal and praedial servitudes must be registered against the title deed of
the property, mostly by means of a notarial deed between the owner of the property and the holder of the
real right. The servitude agreement must be drafted and notarized by a notary public and registered in the
After registration in the Deeds Office the servitude forms part of the conditions contained in the title deed of
the property and can mostly be cancelled by agreement between the parties in the case of a praedial
In the instance of a praedial servitude, a notarial deed of cancellation will have to be registered in the
Deeds Office to note the removal of the servitude condition from the title deed. In most instances of a
personal servitude the servitude can be cancelled by an application to the Registrar of Deeds, stating that
the servitude has lapsed due to the passing of time or death of the holder thereof.
In your situation it would be advisable to contact us, one of our experienced conveyancing attorneys will
help you ascertain whether servitude is registered against your property and to identify the type of servitude
as well as any steps you can take to have the servitude removed.