What are the Consequences of an Unregistered Servitude?

Why do we Register Servitudes?

Once servitude has been registered against the title deeds of a property/ies it obliges the parties to formally recognize the servitude and it allows the person to which the servitude was granted in favour of to enforce their rights.

What Constitutes a Registered Servitude?

The relevant parties (grantor and grantee) will sign a servitude agreement which must be drafted by a notary public and notarized by that notary public, who will then register the servitude against the title deeds of the property concerned in the Deeds Registry.

What is the Force and Effect of an Unregistered Servitude Agreement?

Should the servitude not be registered in the Deeds Registry against the property concerned and in instances where the intention existed between both parties to the servitude to register it, the obligations created by the agreement of servitude still exist as a personal right in contract law until such time as it is registered whereupon it becomes a real right.

The judgment of Lord de Villiers CJ in Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169at 180 eloquently outlined the position;

” As contracts, with few exceptions, give rise only to personal rights, this class of right, although relating to immovable property, is a personal right until registration, when it is converted into a real right by such registration. The same applies to burdens upon land, encumbrances of immovable property (onera realia). They are personal until registration, when they become real…”

What Effect does an Unregistered Servitude have on Third Parties to the Servitude Agreement?

An unregistered personal servitude can be enforced against third parties who acquire the property with knowledge of the personal servitude. This is known as the doctrine of notice and was confirmed in the matter of Troksie and Another v Liquidator of RSD Construction CC Wilbecar Liquidators CC t/a Bureau Trust Gauteng RSD Construction CC and Others (71322/2010) [2015] ZAGPPHC 321.