Registrars of deeds are often confronted with the dilemma of whether a cession of a personal servitude is capable of being registered. From the outset a distinction must be drawn between the common law personal servitudes or servitudes par excellence and the other personal servitudes for which no numerus clausus exists.
Section 66 of the Deeds Registries Act 47 of 1937 provides a statutory prohibition for the cession a personal servitude par excellence and reads as follows:
“No personal servitude of usufructus, usus or habitatio purporting to extend beyond the lifetime of a person in whose favour it is created shall be registered, nor may transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby, be registered.”
It is clear from the aforesaid section that no statutory prohibition exists for the cession of servitudes other than the common law servitudes of usufruct, usus and habitatio.
In terms of recent case law (see Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A) and Armstrong v Bhamjee 1991 (3) SA 195 (A)) the courts once again had to address the question as to whether the cession of personal servitudes, other than the common law servitudes, are capable of being registered.
In both of the above decisions it was held that from the very nature of a personal servitude, the right which it confers is inseperably attached to the beneficiary and cannot be alienated. In confirmation of the judgements reference is made to the case of Willoughby’s Consolidated Co Ltd v Copthall Stores 1913 AD 267 and Hotel De Aar v Jonardon Investments (Edms) Bpk 1972 (2) SA 400 A.
From a deeds registry perspective the above cases of Durban City Council and Armstrong are regarded as the authority for not allowing a cession of a personal servitude, but is thus the correct state of affairs. Neither of the said cases clearly address the question as to whether a cession of a personal servitude is capable of being registered where the wording of the servitude is so couched as to allow cession of the servitude by the holder thereof.
It must be admitted that certain personal servitudes are by their very nature personal, but this does not detract from the fact that the owner of the servient tenement may agree to the servitude being ceded to someone other than the holder. It surely is the inherent right of an owner of land to agree that the servitude so afforded may be ceded to another. From a deeds registration point of view such cession will attract transfer duty, but that is another issue not of relevance to this discussion.
In the Woodhaven case at 559 I-J, it was argued that not all personal servitudes are inalienable, but that it depended upon the nature of the rights under a particular servitude and the terms upon which the servitude was created, whether these rights could be transferred/ceded to a third person. At 562 E of the said case, it was held that in the given case it was unnecessary to decide whether a personal servitude could be rendered alienable by agreement between the parties, as there was no such provision contained in the said servitude and thus irrelevant to the case in question. The question was therefore left unanswered.
I am of the opinion that personal servitudes other than the par excellence servitudes are capable of being ceded, provided that the servitude is clearly worded to allow such cession, or if it can be derived from the contents of the servitude that this is the intention of the parties.
It must be made abundantly clear that the view expressed in this column is a personal view and in no way has the intention of binding registrars of deeds. It merely provides food for thought and readers views hereon will be appreciated.
Property Law Specialist
I think that Allen is right, but there must be no room for doubt. If there is any doubt about the intentions of the parties at the time of registration of the personal servitude, then the servitude must be interpreted so as not to permit cession. It is the intention of the parties that is decisive.
I am in agreement with this comment. The legislature appears to be in agreement as well, as the National Water Act, Act 36 of 1998, specifically provides for the cession of a personal servitude in section 136 (2): "The relevant Registrar of Deeds must register a notarially executed deed of cession to transfer a registered personal servitude in terms of subsection (1)".
A cession is by its very nature a transfer of a right/s by the holder of the right, thus a unilateral act. I would submit that a cession of a personal servitude should by possible unless specifically prohibited either by the specific agreement or ex lege. I often, if not always, see prohibitions of cessions of rights in agreements but very seldom, if ever, see explicit permissions to cede any rights.
I beg to differ with the author's opinion that servitudes can be ceded when Appellate Division held others. Already, the question was fully dealt with in both Durban City Council and Armstrong cases and therefore binding. However, I am mindful that both decisions came prior to enactment of Act 36 of 1998 referred to hereinabove and which is in stark contradiction to the dictum in both cases.
Apart from Act 36 of 1998 referred to above, the Electricity Amendment Act No. 58 of 1989 made provision for the cession of servitudes from one undertaker to another irrespective of whether or not the permission of the owner of that land has been obtained". This amendment came about as a direct consequence of the Woodhaven case.