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THE TERMINATION OF SERVITUDES

Interesting • 17th Dec, 14

 

This article seeks to explore the circumstances in which servitudes terminate, whether by lapsing or by cancellation, and how such termination is registered in accordance with the Deeds Registries Act 47 of 1937 (“the Act”).

Personal and Praedial servitudes discussed

If a servitude is granted to a specific person or entity, such servitude is personal in nature. Classic examples of personal servitudes are those of usus, usufruct and habitatio. On the other hand, praedial servitudes involve two or more properties, the limited real rights over the servient tenement being granted in favour of the dominant tenement. A classic example is a servitude of right of way granted by one property over another securing the access to and from the dominant property. Personal and praedial servitudes may terminate in a number of ways: they may lapse or they may be cancelled.

Lapsing of servitudes

An example of the lapsing of a servitude would be the death of the usufructuary entitled to a servitude of usufruct. Another example is where a personal servitude which has been granted for a limited period expires by the effluxion of time. The registration of the termination of a personal servitude are set out in Section 68(1) of the Act which reads as follows:

If for any reason a personal servitude has lapsed, the registrar shall, on written application by or on behalf of the owner of the land encumbered thereby, accompanied by proof of the lapse of the servitude, the title deed of the land, and if available, the title deed, if any, of the servitude (which title deed the holder of the servitude shall on demand hand over to the owner of such land) note on the title deed of the land and of the servitude, if the title deed of the servitude has been produced, that the servitude has lapsed.”

An example of the lapsing of a praedial servitude is that of lapse by merger, when the owner of the dominant tenement also becomes the owner of the servient tenement. Section 76(1) bis of the Act deals with the lapse of a praedial servitude and mirrors section 68 (1). It prescribes the following:

if a praedial servitude for a limited period has lapsed, the registrar shall on written application by or on behalf of any owner of the land affected thereby, and on production of the title deeds of the dominant and servient properties, and the title deed, if any, of the servitude (which title deeds the holder of the servitude and the owners of the dominant and servient tenements shall on demand produce), note on the title deeds of the land and the servitude that the servitude has lapsed.”

It is clear from the sections in the Act that no further legal act is necessary between the parties in order to register the lapse of a servitude. All that is necessary is an application to the relevant Registrar of Deeds to endorse the title deeds to the effect that the servitude has lapsed. There are no transfer duty implications to this transaction.

Cancellation of servitudes

The cancellation of personal and praedial servitudes on the other hand do require a further legal act in order to terminate them. Examples of such legal act could be an agreement between the parties cancelling the existing servitude agreement, or alternatively cancellation by an order of court. For the registration of the cancellation of the personal servitude in the relevant Deeds Registries Office, section 68(2) of the Act sets out the following requirements:

Cancellation of the registration of a personal servitude in pursuance of an agreement between the owner of the land encumbered and the holder of the servitude shall be effected by notarial deed: Provided that no such deed shall be registered if the servitude is mortgaged, unless the mortgagee consents in writing to the cancellation of the bond or the release of the servitude from its operation.”

Praedial servitudes may also be cancelled in circumstances similar to personal servitudes, for example by agreement or by court order. For the cancellation of a praedial servitude pursuant to an agreement it will also be necessary to register a bilateral notarial deed but in the case of praedial servitudes, one concluded between the dominant and servient tenements. As the bilateral agreement has been executed and registered notarially, a further bilateral notarial agreement to cancel the servitude must also be executed and registered at the Deeds Registries Office. In contrast to the lapse of a servitude, cancellation will give rise to transfer duty implications, and either the transfer duty receipt or exemption certificate must be lodged at the relevant Deeds Office.

Our offices have extensive experience in the registration of personal and praedial servitudes against residential, commercial and farm property. Should you require further information on the cancellation or lapsing of servitudes that may be registered against your or your client’s property, or should you require general information or assistance with the registration or cancellation of servitudes, please do not hesitate to contact our offices or email us.

 

Michele Steindl

Attorney, Notary and Conveyancer

 



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