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
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
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
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
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.
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
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.
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
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 firstname.lastname@example.org 012 – 452 1300