Praedial Servitudes & Renewable Energy

Flashcards covering praedial servitudes, personal servitudes, novel servitudes, and renewable energy in South African property law.

What is a praedial servitude?

Traditional/common law servitudes & novel servitudes; examples include Right of Way, Water Servitudes, and Right of grazing + outspan.

What are some examples of traditional Roman Dutch law servitudes?

Right of Way (drive, walk, herd cattle…), Water Servitudes (water livestock, lead water…), Right of grazing + outspan (let livestock graze…)

What is a personal servitude?

Traditional/common law, irregular servitudes + novel servitudes; examples include Ususfructus, Usus, and Habitatio.

What is Ususfructus?

Right to use someone else’s property (including fruits) and to return the thing substantially intact to the owner on termination.

What is Usus?

Right to use the property for the benefit of himself and his household while keeping it substantially intact – more limited – cannot draw fruits.

What is Habitatio?

Right to occupy a home belonging to the owner while leaving it substantially intact.

What is the Numerus Clausus Principle?

Aim is to prevent the proliferation of limited real rights in land or the fragmentation of land ownership.

In South African property law, is there a numerus clausus of limited real rights including servitudes?

No, there isn't. This is provided for in s63 of Deeds Registries Act and is related to the Subtraction from the dominium test.

What is required to create new limited real rights in South Africa?

They must be registrable in terms of s63(1) of the Deeds Registries Act and comply with the subtraction from the dominium test.

What might restrict the affordability of the no numerus clausus principle?

Deeds Registries Act, subtraction-from-the-dominium test, validity requirements of praedial + personal servitudes, statutory restrictions (e.g. Subdivision of Agricultural Land Act).

What are Irregular Servitudes?

Servitudes with the appearance and content of commonly recognised Roman Dutch praedial servitudes but they are personal servitudes in nature because they are established for the benefit of a specific person without the reference to a dominant tenement.

What is an example of an irregular servitude?

A right of way granted to a lessee in their personal capacity over a neighbor's property, as they are not the owner of the dominant tenement; Since you are the natural person, that right will only last for as long as you are alive or during the agreed upon specific time period.

Give examples of irregular personal servitudes.

Right to fell wood and remove it, right to lay + use a railway line, right to underground cables or sewerage pipes, right to install cables above ground to provide electricity.

List examples of novel irregular servitudes with potential for further development.

Right to conduct or prohibit a business, right to attach a beneficiary’s name to a building, right to protect biodiversity, right to enter land to generate/transmit/store electricity.

According to the Van der Walt article, what are the key legal principles regarding servitudes?

Real rights that burden one property for the benefit of another, traditionally limited to usus and fructus.

What is the numerus clausus principle according to Van der Walt?

Property law adheres to a closed list of recognized rights. New rights must fit within recognized categories or be similar in substance and function. Purpose: Ensure legal certainty and predictability

What does the test for a valid servitude involve according to Van der Walt?

Must create a real right, be sufficiently defined, certain, and registrable, and comply with public policy and legal principles.

What are some policy concerns and court approach regarding novel servitudes according to Van der Walt?

Courts must balance innovation with certainty and structure in property law. Flexibility is possible, but novel servitudes must still pass the 'real right' test.

What are some key cases discussed in the Van der Walt article?

Willie v Estate Hindley (distinction between real and personal rights), Ex Parte Geldenhuys (importance of registration), Lorentz v Melle (limits of acceptability).

What is Leigh-Ann Kiewitz's main argument in her article?

That it is theoretically possible to create a positive praedial trading servitude in South African law if certain legal requirements are met.

What are the requirements for a Praedial Servitude according to Kiewitz?

Two tenements (dominant and servient) owned by different parties, the right must benefit the dominant tenement (utilitas), result in a subtraction from the dominium, be registrable, and not impose a positive duty on the servient owner.

Why is the utilitas requirement key according to Kiewitz?

The main difficulty is proving that a right to trade benefits the dominant tenement, not just a person.

List examples of case law considered by Kiewitz.

Stuart v Grant (market square servitude), Willoughby's v Copthall Stores (positive personal trading servitude).

Characterize a Positive Personal Trading Servitude.

Recognised in South African law. Beneficiary (not land) enjoys the right to trade on another's land. Non-transferable, ends with the beneficiary's death.

Describe the passivity requirement according to Kiewitz.

A servitude may not force the servient owner to act (e.g., cannot require them to buy or sell specific goods).

Give examples of Valid Positive Trading Servitudes according to Kiewitz.

A farm has a right to sell produce at a market square; A brewery having the right to sell beer at a nearby stadium kiosk; A petrol supplier allowed to sell only their products on a specific petrol station site.

When are trading rights most naturally suited to?

Positive personal servitudes.

How is servitude enforcability affected when an owner/neighbour moves away?

The right is still enforceable against the servient owner (whoever is there) because it’s a personal right + limited real right. The right is not granted in perpetuity, so it does not burden the land.

What is the in favorem principle?

If we are unsure, there is a rebuttable presumption that it is rather a personal instead of a praedial servitude because it places a lesser burden on the land.

What are the concerns regarding transferability + duration of personal servitudes in the renewable energy context?

What happens to the renewable energy facility if a company becomes insolvent ,or 100 yrs lapses, or you become bankrupt?

Proposed solutions from Sonnekus regarding personal servitudes in the renewable energy context.

Renegotiate entirely new servitudes, rely on expropriation of the servitude, impose non-consensual statutory or public servitudes.

What is a Novel Servitude?

Can be personal or praedial in content or in nature, but the difference is that they do not resemble commonly recognised Roman Dutch praedial servitudes. They are entirely new.

List examples of Novel Servitudes Case Law.

Right of trekpath, trading servitudes (positive/personal, negative/praedial), naming rights servitude, reserved parking servitude, garden servitude.

What is the focus of the recently promulgated Climate Change Act of 2024?

The shift towards a low carbon climate resilient economy + development of climate change responses by all institutions.

What is a Renewable energy facility?

Energy generated from any renewable source (eg. wind, solar, hydro, geothermal, biomass ).

Which Sustainable Development Goals (SDGs) tie in with renewable energy and property law?

SDG 7: Affordable and Clean Energy, SDG 9: Industry, Innovation and Infrastructure, SDG 11: Sustainable Cities and Communities, SDG 12: Climate Action, SDG 17: Partnerships for the Goals.

What is South Africa's problem with electricity?

Not the generation of electricity but lies with the transmission infrastructure. Infrastructure is overloaded because too much electricity is produced and stored but we cannot transmit and distribute to households + users.

What is the Wind Atlas of SA?

A wind resource and assessment tool used as a map to see where the wind is concentrated for building a wind farm.

What must be done to Securing Rights for Developing a Renewable Energy Facility?

The right must be a real right/limited real right. Look at acquiring the land in the form of ownership or establishing a registered long-term lease over it, or servitudes.

What is the Very first step to do scoping of the land and get an environmental team?

Get contractual rights to do scoping of the land and get an environmental team, called a feasibility study.

What are challenges for securing land rights for IPPs?

Grid proximity, environmental compliance, zoning, legal formalities, servitudes for infrastructure, unclear land ownership and negotiating long-term access.

An IPP will need rights of way in which forms?

Roads; laying underground or overhead powerlines; transmission lines • Right to build • Right to light / air • Right to store electricity • Right to trade

WHY is the right to trade on someone else’s property is important?

Land rights are useless without the right to operate commercially. This right transforms land use into productive, revenue-generating activity and underpins the entire logic of developing renewable energy infrastructure.