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Personal servitudes and how they apply to agricultural land
06 May 2021  | Tiaan Koen  | Download document
 

What is a personal servitude?

 

A personal servitude is one in which a specific person acquires certain rights and powers of use over a specific thing or property of another person. The rights of the specific servitude attaches to a person in their personal capacity. Therefore, if the person dies, the servitude will lapse together with all the rights given to the servitude holder over the specific property of the other person. In general, the duration of a personal servitude is directly connected to the lifespan of the holder of the servitude.

 

In South African law there are several types of personal servitudes which will be discussed in this article. The types of personal servitudes are usufruct, usus, habitatio and pre-emptive rights.

 

Usufruct

 

This type of personal servitude is very unique in the sense that it consists of a right of use and a right of residence. This type of personal servitude gives a person wide rights and powers of use over someone else's property.

 

The servitude holder acquires the right to use the property or thing and he may collect the benefits that come along with it without any restrictions. This means that the servitude holder, for example, is allowed to rent out property over which he has the servitude and can enjoys the rental income without any restrictions.  In the case of farmland, the servitude holder is entitled to the breeding of the livestock, yields of a crop and fruit from the orchards.

 

One of the key benefits that the servitude holder gains from the servitude is that he receives all the excess benefits arising out of the thing or property. It is very important to remember that even if the servitude holder receives wide rights and benefits to the thing or property, it is still his obligation to use and maintain the thing or property to such an extent that it is still to the benefit of the owner of the property when the personal servitude expires.

 

Usus

 

A servitude of use, or usus, gives the servitude holder and their family the right of use over someone else's property for the purpose of satisfying their basic needs.

 

A good example of such a servitude is when a person agrees with a farmer that the he and his family may use the farmer's farm or implements on the farm to meet their living needs. Note that the servitude holder may only use the property or thing to meet their personal daily needs and for no other reason.

 

The servitude holder must also use the property to such an extent that the property is not destroyed. This means that if a person has a servitude over someone else's land, they must ensure that the house remains in good condition, that the farmlands are well maintained and that the livestock remain healthy and safe. It is also very important to remember that the servitude holder may not sell or trade any benefits he receives from the thing or property by virtue of the servitude. This means that the servitude holder may not rent out the house on the land and also not sell the fruit and livestock.

 

Habitatio

 

The habitatio servitude gives the holder of the servitude the right to occupy another person's property for a specified or unspecified period. This type of personal servitude is most common in residential properties, where, for example, a child owns a property and he makes provision for his parents and siblings to receive a lifelong right of residence over the property which still exists even if the child pass away or the property is sold. This type of personal servitude is also available on plots, small holdings and agricultural lands that are already sub-divided into smaller portions.

 

One key difference between a right of use and a right of residence is that the servitude holder of the right of residence has the advantage of being able to rent out the house and enjoy the income from it. Again, it is crucial that the servitude holder maintains the property over which he has the servitude to the benefit of the owner of the property.

 

Pre-emptive rights

 

Finally, we look at pre-emptive rights. This type of right can be used, for example, when a farmer wants to expand his farm in the future and needs his neighbor's land to do so. Based on this, a pre-emptive right can be registered against the title deed of the property, which will ensure that the farmer has the first right to buy his neighbor's property if he decides to sell or when he passes away.

 

The two farmers, as parties to the agreement, will agree on a price per hectare which will be valid for the period of the pre-emptive right. The two farmers can also agree that once the pre-emptive right is exercised, a price will be agreed upon based on the current market value in the area where the land is situated. A pre-emptive right can be applied wisely when you cannot afford a certain yet crucial piece of land at the moment, but you wish to have the option to purchase the land at a later stage.

 

This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out in the abovementioned legislation. This article should under no circumstances be construed as formal legal advice. Contact VDT Attorneys for assistance in this regard.

 

www.vdt.co.za info@vdt.co.za 012 – 452 1300

 
 
 
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