Prop Cases: Servitudes and Doctrine of notice

Kruger

• restrictive/ narrow interpretation of Servitudes

• Interpret them in a manner that favours the servient owner/ burdened land

Zeeman

• Actual use of servitude illustrates what level of access is reasonable

Lorentz

• personal rights are ancillary/complementary to registrable real rights, mirrors s63 (1)

• Praedial servitudes burden the land

Wahloo

• unregistered servitudes

• Unregistered servitudes= contractual personal rights to demand the registration of servitude. It is not a registrable real right, therefore not a servitude.

• in the case of personal right vs personal right conflict, the right acquired first is of priority

• Before registration , the conflicting personal vs personal rights are settled by who had a right first

Ex Parte Geldenhuys

• To be a registrable real right, it ought to show restricting of ones ownership entitlements

• Subtraction of dominium test

• If right has no link to landownership it is a personal right.

• Registering a personal right does not change it into a real right.

Schwedhelm

• servitudes do not impose positive duties on the servient owner

• Servitudes are prohibitory and passive in nature.

Nel

• Intention test

• To be a registrable real right it ought to have the intention to bind succesive owners not just incumbant owners

Cape Explosives

• omission of an established real right does not extinguished it

• Applies the 2 fold test and how they work in tandem

Meridian bay