Servitude, panhandle, way of necessity, give-and-take line – if you are buying a smallholding where any of these might be a possibility or you are subdividing your property, you need to be very clear about what you are letting yourself in for and to make sure that your rights are preserved by being registered in the title deeds of the property.
It sometimes happens that property owners are unable to reach their own land from a public road without driving over the land of another person. This is what is meant by the term “landlocked”. In such a case, the landlocked owner will have the right to drive over someone else’s land to reach their own land.
The landlocked owner might have acquired a right to traverse another’s land in order to reach the landlocked property when he purchased the landlocked land. This right would most commonly have been registered as a servitude in favour of the landlocked land.
A servitude is a registered right that a person has over the immovable property of another. In the case of smallholdings, the most common form is the right of way to travel over a section of the other person’s property in order to reach your own property.
If you have the right of servitude, your plot is known as the ‘dominant tenement’ and the other the ‘servient tenement’.
If you are the servient owner, you do not need to get permission from the person that has a right to exercise servitude over your property if you wish to sell it. However the purchaser will have to comply with the servitude.
Disputes over these rights have landed neighbours in court, so make sure you read all about the matter in the June edition of the Gauteng Smallholder magazine.