Far-reaching Developments Affecting Servitudes

Many properties are subject to servitudes imposing all manner of restrictions – rights of way, building height restrictions, water rights, servitudes prohibiting subdivision, to name but a few. Hitherto the law has clearly stated that a servitude right of way – a servitude granting a neighbouring owner the right to traverse across one’s land – cannot be altered without the consent of both the owner of the dominant and the servient tenement.

In Linvestment CC v Hammersley & Another 2008 (3) SA 283 (SCA) the Supreme Court of Appeal brought about a change which will have potentially fair-reaching consequences. The appellant’s property was subject to two servitudes in favour of the first respondent’s property. The appellant wished to alter the course of the servitudes, for reasons relating to the agricultural activities conducted on the appellant’s property. The respondents unreasonably refused to consent to a change in the servitude routes. Judge Heher, with whom the other four members of the court concurred, affirmed that “as the law stands, once the servitudal rights of the parties are unambiguously circumscribed by the terms of their agreement, a court will not order a departure from such terms in order to bring about a lessening of the burdening on the servient property”. It found that the courts had an inherent power to develop the common law and was, in terms of Section 173 of the Constitution of the Republic of South Africa, obliged to develop common law principles where necessary “taking into account the interests of justice”. The interests of justice, Heher JA stated, required a revision of the common law relating to servitudes. He said:

“Servitudes are by their nature often the creation of preceding generations devised in another time to serve ends which must now be satisfied in a different environment. Imagine a right of way over a farm portion registered fifty years ago. Since then new public roads have been created providing new access to the dominant tenement, the nature of the environment has changed, the contracting parties have long gone. Properly regulated flexibility will not set an unhealthy precedent or encourage abuse. Nor will it cheapen the value of registered title or prejudice third parties.”

The court accordingly ordered that an existing servitude right of way may be altered provided that the servient owner will be materially inconvenienced in the use of his property if the status quo is maintained; the relocation will not prejudice the owner of the dominant tenement; and the servient owner pays all costs incurred in the relocation of the servitude.

The reasoning adopted by the court will probably not be confined to servitude rights of way. Where terms governing a servitude cause material inconvenience, and the terms can be altered without occasioning prejudice to the holder of the servitude, courts may well order the amendment thereof.