select
|

Servitudes, the effects and repercussions

While many servitudes are put in place to protect against buildings being erected on them thereby obstructing views or access, or to allow the person in whose favour it is the right to the land being kept open for things such as future access to their property, future plumbing and the like, it is not often that the servitude protecting the view of a property includes all plant life as well, says Lanice Steward, managing director of Knight Frank Residential SA.

A recent court case covered in a Smith Tabata Buchanan Boyes property law update, Baartman v Stubbs and Others, illustrates the importance of keeping in mind the conditions of the servitude in place as well as being clear on the interpretation of the wording used, said Steward.

In this particular case, the claimant’s property enjoyed the rights of a registered servitude which protected the sea view, which stated that:

“No structure nor tree shall be erected or planted on the property which would obstruct or partially obstruct the sea views from the existing structure on Erf 985 Hout Bay.”

Fortunately, in this case, there was photographic evidence dating back to May 2005 of the view that was being affected. The tree in question was actually planted before the servitude was registered but Baartman felt the onus was on the neighbours to keep this tree in check. In addition, they were not allowed to plant any additional trees on the servitude.

Stubbs and Largier had gone against the conditions placed on their property by a) refusing to accept the responsibility of trimming the tree and b) planting two additional trees on their property (which they later removed). 

The courts held in Baartman’s favour because the protection of the view was the main issue, said Steward, and not whether the tree was there before the servitude was registered or planted later. The relevant wording here, the courts found, was the phrase “No ... tree shall be ... planted which would obstruct or partially obstruct the sea views”. The word “would” implying the future and the emphasis being on the view. 

When subdividing a property, an important aspect to remember is that servitudes should be included for the future owners’ access or building lines and the terms and conditions of these should be included in the agreement of sale, which includes safeguarding the views. These conditions will then later be registered in the new plots’ title deeds said Steward. 

It would also be prudent, as in the case above, to take photographs of the view to be protected, in case these might be needed later, she said.


  Comment on this Article

  Please login to post comments

Post to my facebook wall
  
2000
Characters remaining


    Latest Property News
    • 17 Nov 2017
      FWJK has announced the launch of its latest residential brand, the Lil’ Apple, which will be launched simultaneously in two developments in Cape Town and Umhlanga totaling 600 apartments. The Lil’ Apple is set to be a brand of FWJK’s New York style apartments which will be rolled out nationally.
    • 17 Nov 2017
      It’s been a tumultuous year on many fronts, with socio-political uncertainty setting the tone for much of South Africa’s economic activity yet despite this and seemingly counter-intuitively, the residential property market has held up well.
    • 17 Nov 2017
      The EAAB (the Estate Agency Affairs Board) recently claimed that around 50,000 illegal estate agents could currently be operating illegally.
    • 16 Nov 2017
      Penthouses are synonymous with New York – characterised by high-rise living that is decidedly luxurious and spacious. While exclusivity comes at a price, you can still create a “penthouse” look and feel in your existing apartment or even the upstairs bedroom of a double storey house with some clever design changes and styling touches.
    • 16 Nov 2017
      The area has long been popular with kite surfers and, with escalating property prices in Cape Town itself, is increasingly in demand with home owners who work in town, but are looking to invest in more affordable properties.
    • 16 Nov 2017
      Cape Town’s popularity as a world-class tourist destination has resulted in a spike in the number of homes available for holiday lets and fuelled investor demand for sectional title units with short term rental potential.
    • 15 Nov 2017
      Sappi, one of South Africa’s oldest global companies and a leading global supplier of sustainable woodfibre products, has moved its global and regional headquarters to a new site on the corner of Oxford and 14th Avenue in Rosebank.
    • 15 Nov 2017
      There’s an old saying in real estate that you should seek to make a profit when you buy, not only when you sell – and a large part of succeeding at that endeavour is buying a home in an area with desirable features that will enhance the resale value of your property.
        
    X
    Subscribe to the MyProperty Newsletter

    Name  
    Last Name  
    Email Address  
    Email Frequency
    select
    X
    Share this Page

       
    For Sale Property
    Rental Property
    More Options
    About
    Connect with us
    FEEDBACK