A personal servitude can be described as the right to the enjoyment of another person’s immovable property.
The holder of the personal servitude is entitled to enjoy the immovable property as if it were their own, but should preserve the substance of the immovable property and not destroy it.
The rights in favour of the personal servitude are enforceable by the holder against the owner of the property and these rights remain attached to the holder and are not transferable to a third party.
Personal Servitudes are created by means of a will, by agreement between the parties or by a seller in favour of himself or herself, upon sale of the property, by way of a Power of Attorney to pass transfer.
The duration of a personal servitude can either be for a fixed term, until the occurrence of a future event or for the lifetime of the servitude holder.
A personal servitude can lapse or be cancelled. The most common forms of such lapse or cancellation are death, remarriage, cancellation by court order, vacating of the premises or abandonment of the right.
There are three types of personal servitudes namely a usufruct, habitatio and usus.
A usufruct can be described as a limited real right in which someone, who is not the owner, is given the right to use, enjoy the profits and advantages of an immovable property belonging to another, for a certain period of time. At the end of the period, the property must be handed back to the owner. An example of a usufruct is where a husband bequeaths an immovable property to his children in a will, but stipulates that his surviving wife must enjoy a usufruct for her lifetime. In this way the husband can ensure that his wife has the use and enjoyment of the property while his children remain owners of the property.
A habitatio is a lifelong right to live in a house owned by someone else. This right is registered in the Deeds Office and is enforceable against the registered owner of the property. The holder of a habitatio may grant a lease or sublease to others. An example of a habitatio is where a homeowner grants his pensioner father the right to stay in his house or additional property on the erf.
Usus is a personal right to the use of the property by the holder thereof. Usus can be in favour of movable or immovable property. The holder of a usus right may take the fruits for his family’s daily needs, however he may not sell the fruits nor grant a lease over the property.
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