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 whatever entitlements of ownership are assigned to the other person by the owner. The owner of the servient property retains all the rights flowing from his or her entitlements of ownership provided that the exercise of such rights may not interfere with the rights of the servitude holder. The relationship between the dominant and servient owners is governed by the principle of reasonableness.
Where there is a conflict of interests, the interests of the dominant owner will have precedence over those of the servient owner, subject to the principle of reasonableness. The Holder of the servitude must exercise the servitude civiliter modo, that is, in a civilized and considerate way. This does not mean that the dominant owner is restricted in exercising the servitudal rights merely because to do so would detrimentally affect the servient owner. It follows however that the holder of the servitude may not increase the burden on the servient property beyond the express or implied terms of the servitude.
One must therefore examine the rights and obligations that arise from the servitude, as governed by the aforementioned principle of reasonableness, paying attention to the factors responsible for the footpath’s state of disrepair. In the light of this second contributory factor, should the Trust approach a court for a declaration of rights, arguing that UCT has failed abide by the principle of civiliter modo, such a court has the power to enforce specific duties by way of an interdict. ii. Restoration and extinction.
Pradial servitudes are indivisible, which means that they exist over every part of the land effected, subject only to agreed conditions. If the property to which the servitude attaches to is destroyed, the servitude terminates. Should the property however be restored the servitude can revive. This general rule of revival has received support from our courts. In the case of Kidson it was established that where a right to habitatio has been granted and the house to which this right relates is destroyed, the servitude does not terminate as a result. This is because the indivisible right attaches to the land and not the house.
In this light, the mere fact that the footpath has advanced to a state of disrepair would not in principle result in the termination of the right of way. The right vests in the land on which the footpath in question exists. If the area of land has been altered to the extent that the exercise of the servitude becomes permanently impossible, then there is no chance of revival. From the given facts it is unclear whether restoration is possible. Assuming that it is, UCT can, at its own expense, restore the footpath to its former condition and prevent any possibility termination.
The Trust is however under no obligation to do so as this would go against the aforementioned passivity principle, which is more than just a guide when determining whether a specific agreement creates servitutal rights. Rather it has been stated that ‘it is a negative requirement for the establishment of praedial servitudes, in that it prescribes what may and may not be the content of a praedial servitude. ’ iii. Changing the route Alternatively, the court in Linvestment allowed for the owner of a servient tenement to change the route of a defined servitude.
It laid down four requirements which must however be fulfilled. Firstly, the status quo must be materially inconvenient to the servient owner, secondly the relocation must occur on the servient tenement, thridly the relocation cannot prejudice the dominant owner, and fourthly the servient owner must pay all costs. From the facts, both parties appear to be materially inconvenienced by the status quo. Moreover the reloaction could occur on the servient tenement and UCT would have to pay all costs. What is however a more contentious issue is whether the relocation would prejudice the dominant owner.
There is not enough evidence provided to draw a definite conclusion, but if one accounts for the two factors responsible for the advanced state of disrepair of the footpath, it could be difficult to argue that this would avoid a similar occurrence.
[ 1 ]. The Principles of the Law of Property in South Africa at 239
[ 4 ]. Malan v Ardconnel Investments (Pty) Ltd 1988 (2) SA 12 (A) at 37D.
[ 8 ]. Lorentz v Melle 1978 (3) SA 1044 (T) at 1049B – 1051C
[ 9 ]. Low Water Properties (Pty) Ltd v Wahloo Sand CC 1999 (1) SA 655 (SE) at 662
[ 10 ]. Schwedhelm v Hauman 1947 (1) SA 127 (E)
[ 14 ]. Ex Parte Geldenhuys 1926 OPD 155 at 164-165.
[ 15 ]. Supra (note 10) at 233.
[ 17 ]. Roeloffze NO and Another v Bothma NO and Others 2007 (2) SA 256 at 266H – 267D
[ 18 ]. Johl and Another v Nobre and Others 2012 WCHC 20 at par 13
[ 19 ]. See Rabie v De Wit 1946 CPD 346 at par 351 where civiliter modo conduct was found to be use “in a manner that will cause the least damage or inconvienance to the servient property”.
[ 20 ]. Fourie v Marandellas Town Council 1972 (2) SA 699 (R)
[ 21 ]. Willie’s Principles of South African Law 9th Edition p 544
[ 22 ]. From the facts: Firstly the wet Cape Winters and secondly, the increased traffic since the conclusion of the parking agreement which together have caused considerable erosion
[ 25 ]. Kidson v Jimspeed Enterprises 2009 5 SA 246 (GNP) para 6-14.
[ 26 ]. Du Toit v Visser 1950 (2) SA 93 (c) at 102
[ 27 ]. The Principles of the Law of Property in South Africa at 243; Wille’s Principles p 596.