Court asserts owner rights to servitude access

“A servitude holder may not increase the burden to other users of a property servitude beyond the express and implied terms of such servitudes.”

This was the summary made by the attorneys Smith Tabata Buchanan Boyes (STBB) on a recent High Court case (Johl and Another vs Breand and Others).

The case has helped clarify the thinking on servitudes which can be a real problem in South Africa because-often being back entrances to properties - they can render a property less secure.

When steps are taken to remedy these matters, they caneasily be inconvenient to the legitimate users of such servitudes.

In this case the owner of the ‘dominant property’ has a right of way over his neighbour’s ‘servient property’ servitude.

Over the years, the ‘dominant’ owner increased the security measures on this servitude to the point where it was protected by two security gates, CCTV and an armed guard – and the second owner then found that he no longer had access to it from one of the points which he had traditionally used.

His application for a remote control to open the security gates was turned down by the first owner on the grounds that it increased the security risk – especially if, as was his custom, the fairly elderly second owner used the servitude for walking his dogs, as was his practice.

In giving his judgment, the judge said that all law in South Africa is “subject to the principle of reasonableness” and that those with rights (including property rights) must exercise them in a “civilised and considerate way.” In this case, said the judge, the dominant owner had no legal entitlement to this servitude other than to use it as a right of way. Imposing restrictions on the subservient owner was therefore an action which was beyond “the express or implied” terms relating to the servitude and in practice made the servitude the dominant owner’s exclusive use area.

The court therefore ordered that the second owner be given a remote control and allowed complete access to the property.

Commenting on the case, Steward said, “Had this ‘principle of reasonableness’ been more openly accepted at the outset in other disputes involving servitudes and similar matters, far less difficulty would have been encountered in reaching settlements. Let us hope that this case sets a precedent for all property owners and helps reduce the domination of one party over another which can so easily occur in property dispute matters.”

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