Servitudes, the effects and repercussions.

29 May 2015

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.