Access servitude - any property law experts out there?

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grae22
Posts: 75
Joined: Thu May 24, 2018 9:12 pm
Real Name: Graeme B
Location: KZN

Access servitude - any property law experts out there?

Post by grae22 »

Anyone familiar with the finer points of servitudes? Looking into the topic for a potential climbing access issue.

As I understand it a servitude is registered against a title deed, e.g. if you own property A and require access to X which is only reasonably accessed via property B then a servitude can be enacted to allow you access to X via B and is registered against the deed to A (i.e. your property).

Should you then sell A the servitude falls away and does not automatically pass on to the new owner.

If the above is correct, is there any circumstance where the servitude remains in effect - to your benefit - after having sold your property?

Cheers :thumleft:


Old Smelly
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Joined: Fri Nov 28, 2008 1:21 pm

Re: Access servitude - any property law experts out there?

Post by Old Smelly »

I am pretty sure that the servitude stays in the Title Deed and is transferred with the property to the new owner.

There is a lot of paranoia around these things but they are basically always legally enforceable as long as you have the document and the signed proof that "you" have legal access. The only question marks arise around who has the legal right and if there were terms on the document.

The best way to see it is to think of yourself as a farmer who owns a piece of land he needs to get to. Would you make that a conditional right where you have to ask for permission 3 days in advance? or in writing? OR in a limited number of people? NO

So if it comes to a legal right of servitude then that is how one should approach it - do I have the legal right - YES. Ok then we - the owners of the legal right need access at all times. Yes this may require some access conditions or arrangements but these can be sorted out once the landowner understands that due to your "new" operating parameters you need access at all times. This needs a plausible explanation as to this requirement but you can come up with one. Then you structure your arrangement with the landowner based on that ideology. The argument is legally defensible.

If you don't have a legal servitude then forget all of that and beg and plead and scrape and pay parking fees etc.

If you have a legal servitude then once you have your legally enforceable position then sit down with the landowner and come to a reasonable working arrangement - with a reminder that you have a right to access at all times.

We have too many of these weakly argued servitude arrangements that are compromised beyond all reason when it comes to climbing. Yes there is no need to cause trouble but at the same time pussyfooting around when someone went to the trouble of obtaining a legal right of access is also silly.

Just trespassing and the arguing your rights is also silly. As is just trespassing.
Really, its not that bad...I think it's my shoes...
benfredlund
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Re: Access servitude - any property law experts out there?

Post by benfredlund »

I'm not a servitude expert in any way but I do work with servitudes occasionally. A legal servitude is actually registered on the property with the Surveyor General.

If you go onto the Surveyor General Website you can view property boundaries and registered servitudes (turn on the servitude layer on the right) https://csggis.drdlr.gov.za/psv/. Unfortunately that website does not show who holds the property or the servitude. Some municipalities have more property information on their websites (eg Ethekwini you can usually find the actual property diagrams for a property via their website).
grae22
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Joined: Thu May 24, 2018 9:12 pm
Real Name: Graeme B
Location: KZN

Re: Access servitude - any property law experts out there?

Post by grae22 »

Thanks guys.

@benfredlund Great link, thanks. Ja the Ethekwini GIS tools are probably the only redeeming feature of the municipality.

@oldsmelly Thanks, a legal servitude was in place - I'm trying to determine if we still have rights to the servitude after having disposed of our property in the area. I haven't read anything to suggest we would and still need to examine the documentation (if any still exists) from the time - according to this page there would be a notarial deed.
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