Page 74 - Q&A Book.indd

A praedial servitude on the other hand is a right that attaches to the
property itself (and not to a person) and even though a change in
ownership may take place this servitude will continue to exist and
can only be cancelled by agreement between the parties. The most
commonly known praedial servitudes are a right of way, pipeline
servitude, electrical substation servitude, and so forth.

A personal servitude can be created by agreement between the
parties but in practice it is mostly provided for in terms of a will in
which a surviving spouse is given the right to occupy the property
during their lifetime. A praedial servitude is mostly concluded by
way of an agreement between parties which sets out the rights and
responsibilities of each party as well as the consideration amount that
the person in whose favour the servitude is to be registered will have to
pay the owner of the property. The consideration payable is usually in
the form of a lump sum, but the parties are free to agree on a monthly
or quarterly payment, depending on the type of servitude.
The general rule is that both personal and praedial servitudes must be
registered against the title deed of the property mostly by means of a
notarial deed between the owner of the property and the holder of the
real right. The servitude agreement must be drafted and notarized by a
notary public and registered in the Deeds Registry.

After registration in the Deeds Office the servitude forms part of the
conditions contained in the title deed of the property and can mostly
be cancelled by agreement between the parties in the case of a
Property deed of cancellation will have to be registered in the Deeds Office to
praedial servitude. In the instance of a praedial servitude, a notarial
note the removal of the servitude condition from the title deed. In most
instances of a personal servitude the servitude can be cancelled by
an application to the Registrar of Deeds stating that the servitude has
lapsed due to the passing of time or the death of the holder thereof.
In your situation it would be advisable to contact your attorney to help
you ascertain whether a servitude is registered against your property
and to identify the type of servitude as well as any steps you can take
to have the servitude removed.

69