From a conveyancing perspective it is very important to distinguish between positive and negative personal servitudes. The reason is due to the fact that different sections of the Deeds Registries Act 47 of 1937 ("the Act") apply when creating and registering these servitudes.
In the case of a positive personal servitude, the owner of the land burdened by the servitude must allow the holder of the servitude to exercise some right or benefit on the land in question (the servient tenement). The common law recognized three positive personal servitudes, namely usufruct, habitation and usus. Presently, there is no numerus clausus for positive personal servitudes and as stated the test that needs to be applied is whether the beneficiary of the servitude has the right of access to the servient tenement to exercise some right or derive some benefit from the land, e.g. right of way, right to collect fire wood, power line servitudes, etc.
A negative personal servitude, on the other hand, merely prohibits the owner of the land from exercising one or other of his/her inherent rights of ownership. In other words the owner is restricted from exercising a right, and the beneficiary or holder of the personal servitude has a veto right should the owner of the dominant tenement wish to do so. These servitudes are nothing more or nothing less than restraints, prohibiting the owner of the land from doing something. Most conditions imposed under the Municipal Ordinances or by township developers (transferors) are in the nature of restraints, for example prohibiting the owner from subdividing without the necessary consent, prohibiting more than one building to be erected on the land, prohibiting the transfer of the land without the consent from the Home Owners' Association, etc.
CREATION OF POSITIVE AND NEGATIVE PERSONAL SERVITUDES
Section 65(1) of the Act provides that all personal servitudes, whether positive or negative, may be created by a bilaterally executed and attested notarial deed entered into between the owner of the land and the beneficiary (holder of the right).
Exception to General Rule
Section 65(1) of the Act provides a registrar of deeds with a discretion to allow for the registration of a unilaterally executed and attested notarial deed where the beneficiary is the general public or some of the owners of erven in a township.
Regulation 61(2) furthermore allows a registrar of deeds to accept for registration a unilateral notarial deed of cession of a personal servitude, provided such deed does not impose any obligation upon the cessionary. It is, however, submitted that this regulation is ultra vires the provisions of section 65(1) of the Act, which provides for the bilateral notarial registration.
Where positive or personal servitudes are created unilaterally, it is submitted that the notarial deed, embodying such servitude, must disclose that the beneficiary has accepted the servitude and such acceptance must be retained in the notaries protocol.
Reservation in a Deed of Transfer
Section 67 of the Act provides for a further exception to the general rule alluded to above in that a personal servitude, positive or negative, may be reserved by way of a condition in a deed of transfer of land, provided the reservation is in favour of the transferor; or the transferor and his/her spouse, or the survivor of them, if they are married in community of property; or the surviving spouse if transfer is passed from the joint estate of spouses who were married in community of property.
However, irrespective of the provisions of section 67 of the Act, a negative personal servitude (restraint) can always be created in the deed of transfer, in terms of last proviso of section 65, provided:
- it is capable of being enforced by some person who is mentioned in the said servitude; and
- such person has accepted the right.
The provisions of this proviso
are mostly utilized with the creation of restraints enforceable by Home Owners' Associations. However, cognizance must be taken of the fact that no creation is necessary where the restraint is created by statute, for example the Municipal Ordinance. Section 65(1) of the Act clearly provides that "save as provided for in any other law ….." (see also RCR 14 of 2009).
There is a distinct difference between positive and negative personal servitudes as well as the manner of creating such servitudes.
By: Allen West