Author: Shelley Orgill
What is a servitude?
A servitude permits a third party, who is not the owner of the property certain rights over the property. As the owner, you are entitled to exercise all the usual ownership rights over the property, to the extent that it does not hinder the exercise of rights held by the servitude holder. Equally, the servitude holder may exercise his/her rights bestowed by the servitude but not in a manner that hinders or inconveniences the owner of the property.
Types of servitudes
The most typical property servitudes are personal servitudes, praedial servitudes or public servitudes.
- Personal servitudes:
Commonly a personal servitude is registered over a property in favor of an individual or legal entity. As a result, the real right affixes to the individual, the servitude holder and not the property. There are three types of personal servitudes namely; usufruct, habitatio and usus. As the accepted practice the servitude is registered by means of a notarial deed that is registered at the Deeds Office. A personal servitude is generally registered for an agreed upon period between parties and expires upon an event, specified in the Notarial Deed, occurring. Alternatively, the personal servitude terminates upon the death of the servitude holder. Due to the personal servitude attaching to the individual as opposed to the land itself, the servitude is non-transferable and cannot be ceded to another individual, other than to the registered owner.
A usufruct entitles the usufructuary holder the use, enjoyment and fruits of another’s immovable property, for a limited period of time- usually for the life span of the holder. The usufructuary holder at no point acquires ownership of the immovable property. An example of this instance is where a father bestows, upon his death, a house to his children on the condition that a life-long usufruct is registered against the title deed in favor of his surviving spouse. In doing so, the father ensures that his surviving spouse has a place to stay and that the property may not be sold by the children without their mother’s written consent.
The right of usus entitles the holder to use and possess movable property and to occupy immovable property. The holders may only utilize the fruits of the immovable property for daily consumption and is not permitted the sale of fruits.
Habitatio refers to the right of the holder and their family to reside in the property belonging to another. The holder of the right of Habitatio may rent the property out, where the holder of a usus may not. This right is defined as a lifelong right and registered at the Deeds Office, thus enforceable against all, including the owner of the property.
- Praedial servitudes
A praedial servitude refers to a servitude registered over an immovable property in favor of another immovable property. As a result, the real right affixes to the land and not an individual, therefore in the event of a sale of the property where a praedial servitude is held, it is passed over to the new owner. A praedial servitude comprises of two tenements namely: the servient tenement and the dominant tenement. The servient tenement refers to the land burdened by the servitude. Whereas the dominant tenement refers to the land that derives a benefit from the servitude such as a right of way and right of grazing servitude over the servient tenement. Praedial servitudes are created by means of a registered Notarial Deed for a specified period of time or in continuity. Typically, a land surveyor would prepare a servitude diagram indicating the location of the servitude, which is attached to and registered along with the notarial deed. A praedial servitude may terminate by agreement between the parties and a registered notarial deed of cancellation against the title deed is required.
- Public servitudes
Public servitudes are registered in favor of the general public and a public road would serve as an example of such a servitude. Servitudes can be used in a manner that permits access or use to an individual over immovable property. As well as limit or prohibit the use of ownership rights by the owner. It is important to bear in mind that servitudes have the potential of increasing or decreasing property values depending on the servitude that is registered.