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Buying property with a servitude

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30 Oct 2012

When buying a property, particularly vacant land or land for subdivision, with a servitude, ensure that you ascertain whether it is personal or praedial. 

A praedial servitude is established over a servient property for the dominant property in perpetuity, irrespective of who the owner is. The other, a personal servitude, is exactly that - it will terminate when the owner dies.

This is advice from Lanice Steward, managing director of Knight Frank Anne Porter, who says the difference between the two is very important. A praedial servitude is established over a servient property for the dominant property in perpetuity, irrespective of who the owner is. The other, a personal servitude, is exactly that - it will terminate when the owner dies.  

This distinction, says Steward, became important when a sea view property owner wished to object to his neighbour’s building plans on the basis that the servitude placed a height restriction on any building additions.  

In a case mentioned in a recent Smith Tabata Buchanan Boyes newsletter, Resnekov v Cohen, there was a long and complicated series of transactions which led to the dispute.  

This started in 1923 when Kantorowitch bought a parcel of land in Sea Point. Most of the land was sold in 1923 to a Mr Coetzee and Mr Kantorowitch kept a portion for himself. In 1924, he sold off more of the land to a Tittleton and retained a small portion (which later became Cohen’s property). In 1926 he sold off the last piece of land to a Courtenay but during this transfer title deed restrictions were inserted. 

These read: “C. To the following special conditions contained in the said Deed of Transfer No 3312 dated 10 April. 1926, imposed for the benefit of A. Kantorowitch and his Successors in Title'. - No building other than single storied buildings shall be allowed to be erected on the properly {sic} hercbv {sic} transferred ...” 

Two years later, however, Kantorowitch bought back a piece of land that he had previously sold to Coetzee which had been subdivided – the piece of land later became Resnekov’s property.  

It is interesting to note that what happened in 1926, 1927 and 1928 impacted on the court’s decision in 2011, says Steward. 

“In a complicated back and forth of sales and registering of deeds, there was one clause that was missed - the servitude clause mentioned being for the benefit of Kantorowitch and not the property.  

"If there is any question mark in the mind of the buyer, whether it be height restrictions, zoning, servitudes, etc, they must ensure that they employ an attorney to do a thorough deeds search going back as far as possible – as was shown to be necessary in the case above – where the servitude was eventually determined by the courts to be a personal one and the building was allowed to go ahead.”   

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