Linvestment Cc Hammersley and Another 2008 (3) Sa283

This case overturns the established case law by holding that the owner of servient tenement can in fact change the route of a defined servitude without the consent of the dominant owner if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs. It is not clear what implications this would have for undefined servitudes, but the Court’s reasoning would seem to apply equally well in that case.

Facts Two men own portions of a farm. The one man’s property is subject to a registered and precisely defined right-of-way servitude in favour of the other’s property. The owner of the servient tenement wished to change the route of the defined right of way at his own expense when the original route became inconvenient to him. The owner of the dominant tenement refused to consent to the change on allegedly unreasonable grounds. The servient owner brought the matter before the High Court to grant an order allowing the change.

The High Court rejected the claim, so the applicant appeals to the present court. Legal question Can the owner of a servient tenement freely change the route of a defined servitude? Reasoning As in the court a quo, it is assumed that the appellant’s allegations are true (that is, the first respondent’s refusal to consent is unreasonable, and the appellant is unduly inconvenienced by the present route). It is acknowledged that the appellant’s claim goes against established law.

Typically the servient owner in respect of a precisely defined servitude can change the route only with the dominant owner’s consent. But comparative jurisprudence reveals that there is a clear trend away from strict adherence to contractual rights to a utilitarian power of lawful relocation of servitudes. The common law must therefore be developed in accordance with s 173 of the Constitution to accommodate changing circumstances, to escape the burdens imposed by past owners, and to alleviate gross and unjustified inconvenience.

Answer to legal question Yes, such relocation is permitted if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs. Outcome The appeal is upheld, with the parties ordered to pay their respective costs (since the appellant may yet fail on the facts, and the respondents could not have predicted the court’s reasoning).