Abstract

The consequence of encumbering property with a perpetual praedial servitude is to burden all subsequent rightful holders of the servient tenement with the encompassing restriction to their entitlements as holders of the real right to the property. Such an encumbrance results in a severe subtraction from the dominium of the servient property. It would be deemed proof of prodigality if an owner were to consider such encumbrance unless a reasonable quid pro quo is received in lieu of the encumbrance, and this may take the form of damages payable to the owner of the servient property. The competencies of prodigals are restricted in their own interest and any perceived unassisted disposals of their assets are deemed a nullity. The same applies to any perceived disposal of valuable assets if the law limits the competency of the party to the disposal. In light of the premise that when in doubt any presumed servitude should be interpreted restrictively it is submitted that a court should be sceptical when claim is laid to a perpetual servitude encumbering 250 out of a total of 311 parking spaces in a housing development scheme for retired persons for the benefit of unspecified generations of clients frequenting businesses housed on the neighbouring property if no meaningful quid pro quo was paid by the owner of the neighbouring property and the competence of the directors who mandated a lawyer to register the servitude may be doubted. In order to protect the interest of holders of an interest in a share block scheme or a housing development scheme for retired persons the legislature enacted that any subtraction from the dominium of such schemes as owners of immovable property may only be agreed to when mandated by a special resolution. In the Olive Marketing case no special resolution was minuted where the required decision had been taken. On account of a stipulatio alteri the first defendant acquired the property from the eThekwini Municipality in terms of an agreement of sale to which it was not a party. The sale agreement provided that a parking servitude over the subject property would be created in favour of the adjoining property as dominant tenement. The court held that: it was the clear intention of the municipality and the buyer to create a praedial servitude, and the agreement of sale accurately reflected this intention. This judgement regarding the obligatory agreement may be sound but it is submitted that the court failed to consider whether any valid real agreement could be concluded to transfer the limited real right of the servitude unless the statutory requirements were met. By its signature to the sale agreement, the buyer had bound itself to grant and register the servitude, but the buyer never acquired ownership of the property. The plaintiff only acquired ownership of the perceived dominant property fourteen years later and was not a party to the original sale. Therefore, it is doubtful whether he was entitled to compel the first defendant to cooperate in registration and the utilisation of the so-called praedial servitude. If a servitude was involved, it is submitted that at most a personal servitude could have been considered, because the utilisation of the parking spaces does not meet the requirement that the entitlement of the servitude must benefit the dominant property and not the drivers of the vehicles seeking parking. It is comparable to the well-known examples of a personal servitude to play tennis on the servient property or the walk on that property, but such a personal servitude is not transferable and is extinguished by the death of the holder. It does not burden the servient property in perpetuity. The court’s finding that the special resolution requirement under section 4B of the Housing Development Schemes for Retired Persons Act 65 of 1988 was not applicable because the registration of the servitude did not impact on a right of occupation under the act cannot be supported. The special resolution requirement prohibits not merely the alienation of land intended to be used for occupational purposes in the narrow sense but also aspects that impact on the quality of the housing of the residents including the parking facilities. It is submitted that any subtraction from the dominium is included under the restriction and requires a special resolution and the transfer of such a perpetual praedial servitude does subtract from the dominium.