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Praedial servitudes

28 June 2012

Cancellation by agreement
In the case of praedial servitudes the modus operandi for both the modification and cancellation thereof by agreement is not prescribed, and it is inferred that it must be effected by a notarial deed entered into by the owners of both servient and dominant tenements. The only reference to cancellation is found in section 75(2)bis of the Deeds Registries Act 47 of 1937 (the Act), which states that:

‘if it is sought to cancel a servitude and the dominant tenement is mortgaged, the bond shall be produced together with the consent in writing of the legal holder thereof to the registration of the cancellation’.

It is thus clear that in the case of modification such bondholder must also consent.

Cancellation by abandonment
Cancellation of a praedial servitude by abandonment or by waiver must also occur in terms of a bilateral notarial deed, or in terms of an order of court (see RCR 10 of 1987).  No transfer duty receipts or exemption certificates need to be lodged where the servitude lapses (see RCR 4 of 2005).  However, where a servitude is cancelled, a transfer duty receipt or exemption certificate must be lodged.

Lapsing by merger
Where the owner of ‘Portion 1 of Mooikloof’ is to receive transfer of the ‘remainder of Mooikloof’ over which it has a registered servitude of right of way, the servitude obviously lapses by merger in accordance with the common law.  The transfer deed of Portion 1 would have to be lodged for noting the fact of the merger thereon.  The servitude would be carried forward into the transfer of the Remainder of Mooikloof and this transfer and that of Portion 1 would be endorsed regarding the merger, no application being necessary.

The provisions of section 60 of the Act must also be adhered to when the holder of mortgaged real rights in land acquires the ownership of that land, or if the owner of mortgaged land which is entitled to rights of servitude over other land acquires the ownership of that other land.  The acquisition of the land in either case may not be registered without the consent in writing of the holder of the bond.  The bonds need not be endorsed (RCR 41 of 1967 and RCR 53 of 1994).

In actual practice it is difficult to spot a merger for the reason that it is seldom that the conveyancer or examiner is aware of the fact that a transferee is the owner of the opposite tenement to a servitude contained in a deed from which transfer is being passed.  It is sometimes apparent from the description of the servitude in the title of the property being transferred.  Hence, most mergers are not noted at the time of transfer of the tenement bringing about the merger not being noted.  The merger is very often spotted at some stage after such registration has occurred and, provided the common ownership of both tenements still then remains, the merger can be endorsed.  In this case, however, the merger being a fait accompli, it is too late to invoke section 60 of the Act as the acquisition of the ‘land or rights’ referred to therein has already taken place.  But, failing section 60, section 75(2)bis could be invoked as registration of the merger is in effect a registration of cancellation of a servitude and this section provides that, if the dominant tenement is mortgaged, ‘the bond must be produced with the consent of the legal holder thereof to the registration of the cancellation’.  

If ownership is not common, that is, a merger did occur, but ownership of the tenements has again passed into different hands without the fact of merger being recorded, the registrar will not endorse the existing titles to the effect that the servitude was wrongly included, as a merger had taken place previously.  It would seem in such a case that there is a presumption that an unnoted ‘merged’ servitude is revived by inclusion in the title of a tenement transferred after such de facto merger took place (Du Toit v Visser & another 1950 (2) SA 93 (C), Myers v Van Heerden & others 1966 (2) SA 649 (C)).  Such a presumption, as far as the registrar is concerned, could be rebutted only by the owners agreeing to cancel the servitude formally, i.e. by notarial deed or the court ordering it to be cancelled.

A merger can take place in the case of praedial servitudes only if the ownership of the servient and dominant tenements is coextensive.  Partial mergers which occur when land held, for example, by various owners subject to a servitude in favour of some other party who transfers to one of the co-owners cannot be noted (see Mocke v Beaufort West Municipality 1939 CPD 135).

If a servitude is of such a nature that on subdivision of the tenement the servitude becomes a separate servitude on the subdivision, that is, separate in all respects from the remainder of the original tenement, and is capable of being altered, amended or cancelled without reference to such remainder, a merger effectively takes place if the owner of the subdivision on acquiring it is, or later becomes, the owner of the other tenement.  While the servitude will in such circumstances lapse completely on the subdivision, it lapses only in so far as that subdivision is concerned in respect of the other tenement and will remain between that tenement and the remainder of the tenement originally subdivided.  This is not a partial merger.

Cancellation by effluxion of time
All praedial servitudes may be imposed for a limited period.  At the expiration of this period the owner of the property can apply to the registrar to note the lapse of the servitude etc on the titles concerned.  The provisions of the Act (section 76(1)bis) in regard to praedial servitudes are similar to those contained in section 68(1) in regard to personal servitudes.  A written application must be lodged by the owner of any land affected thereby together with proof of the lapsing if not evident from the wording of the servitude.  The title deeds of both dominant and servient tenements must be lodged for endorsement.  The sub-section also prescribes that the title deed, if any, of the servitude must be lodged.

Cancellation by court or legislation
Praedial servitudes, like personal servitudes, can also be cancelled under the provisions of the Removal of Restrictions Act 84 of 1967, should such act apply, alternatively the court must be approached.

General
A servitude which is so worded that, if a certain event happens, the property will be subject to it, is not registerable. Such a ‘servitude’ does not create a deduction from or restrict any right of ownership (see section 63). See also Hollins v Registrar of Deeds 1904 TS 603 where it was held that there can be no registration of a right the birth of which is dependent upon a contingency.

Allen West
Deeds Training
Pretoria

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