Cession of personal servitudes

4 June 2003

Allen West's article, Cession of personal servitudes - To register or not to register, provides food for thought. He notes the statutory provision against the cession of the common law servitudes of usufruct, usus and habitatio, as provided for in section 66 of the Deeds Registries act 47 of 1937. This provision is enforced by the relatively recent cases of Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A) and Armstrong (In his capacity as representative of Lloyds Underwriters) v Bhamjee 1991 (3) SA 195 (A)) as authority for the belief that personal servitude is by its very nature inseparably attached to the beneficiary and cannot be alienated.

However, Allen West opines that neither of these cases clearly address the question of whether a cession of a personal servitude outside of the three common law ones is capable of being registered where its wording is so couched as to allow its cession by the holder. Notwithstanding the fact that some personal servitudes are so personal so as to exclude the possibility of being registered, he believes that under certain circumstances it is an inherent right of an owner of a servient tenement to agree to the cession of that servitude to someone other than the holder.

In Woodhaven it was argued, but not concluded, that depending on the nature of the rights under a particular servitude and the terms upon which it was created, these rights could in fact be transferred/ceded to a third person. Allen West agrees with this, provided the servitudes are clearly worded or it can be derived from their contents that this is the intention of the parties.

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