Advice and Opinion

If Buying A Property With A Servitude Over Another, Check That It Is Registered

Increasingly in Cape Town today there are properties that are being subdivided, and two or sometimes three units are being built where in the past there was just one large family residence. This could be because people nowadays are less inclined to want the rolling acres of land and they no longer want the responsibility of the time and money that goes into the upkeep of such a property. Or, secondly, because of the new high density plan introduced by the City of Cape Town, properties that previously could not be subdivided are now eligible for subdivision, says Lanice Steward, managing director of Knight Frank Residential SA.

Under Roman Dutch law, which is the base of common law in South Africa, there is the blokland principle, which gives the landlocked plot holder an automatic right of way over another property in order to access a public road, without the servitude having to be registered at the Deeds Registry.

In a recent court case Van Rhyn and others v Fleurbaix Farm, seen at the Western Cape High Court, a company subdivided its land into two portions and one of the landlocked portions was transferred to Fleurbaix and the portion that was accessible by public road was transferred to Van Rhyn. The way the law works in SA, says Steward, without having to be registered at the Deeds Registry, Fleurbaix had an automatic servitude over Van Rhyn’s property to get to the public road but Van Rhyn later made improvements to his property which closed off Fleurbaix’s access.

The judge presiding pointed out that the blokland rule entitled Fleurbaix right of way over the adjoining subdivision but the caveat to this is that Van Rhyn could alter the access, provided it was not an unreasonable alteration.

“This again could create another problem,” said Steward, “as one person’s reasonable could be completely unacceptable to another.”

“However, if you are subdividing land or are purchasing a subdivision where your property is the “back” property, it would be prudent to ensure that there is a registered servitude over the front property so that there can be no question later as to whether your access will be cut off or changed,” she advised.