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Servitudes on Immovable Property
The document discusses various aspects of servitudes related to immovable properties, including types such as positive and negative servitudes, and their impact on property conveyance. It explains how servitudes are binding on properties even if the owner is unaware, and they can significantly affect property value by limiting usage. Additionally, it covers how servitudes can be created, terminated, and the implications for property owners regarding rights and responsibilities.
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Servitudes on Immovable Property
- 1. Servitudes Effect of Servitudeson conveyances of immovable properties Ajithaa Edirimane, LLB MLB Attorney-at-Law & Notary Public COPYRIGHT Ajithaa Edirimane - No part of this slide presentation shall be copied or extracted or used in anyway without the publisher’s permission - ajithaa2001@yahoo.com
- 2. Types of Servitudes The following land servitudes upon land may be attached to land as “appurtenances”, : The right of way; The right of taking water, wood, minerals, and other things; The right of receiving air, light, or heat from or over land; The right of receiving water from or discharging the same upon land;
- 3. The rightof having water flow without diminution ordisturbance of any kind; The right of using a wall as a party wall; The right of receiving natural support from adjacent land or things affixed thereto;
- 4. Dominant tenement Servient tenement Dominant tenement - The land to which an easement is attached is called the dominant tenement; Servient tenement- the land upon which a burden or servitude is laid is called the servient tenement.
- 5. Positive Servitudes Negative Servitudes Positive Servitudes – permits the Dominant tenement to use the servient tenement in a particular way. i.e. walking across the land, drawing water from a well Negative Servitudes – it is the duty of the owner of the land to forbear / or not use it in a particular way. i.e. not to obstruct light
- 6. Impact of Servitudeson immovable property Servitudes or limited real rights are aspects of immovable property that can have a huge impact on an owner's use of the property.
- 7. And servitudesor limited real rights stay binding on a land, even if the owner did not know about the servitudes at the time of buying the property.
- 8. Implications of Servitudes Search for Servitudes How to search for Servitudes
- 9. Buying a Propertywith Servitudes When a property is sold, the limited real rights or servitudes registered against the title deed stays valid. The property is always sold "subject to" the limited real rights or servitudes, whether the buyer was aware of those servitudes or limited real rights, or not.
- 10. Servitudes and PropertyValue The fact that another person has a registered limited real right or servitude over a property limits the owner's use of the immovable property and will negatively affect the value of the property. Servitude is an encumbrance on the servient tenement
- 11. On theother hand, if the owner of a property has a registered limited real right or servitude over another property, it will positively affect the value of his/her property. Dominant owner should impose a minimum burden on the servient owner – Rule of Roman Dutch Law
- 12. Usufruct A Usufructis a type of Servitude A usufruct grants a person (who is not the owner of the property) the right to occupy the property, and enjoy the fruits thereof. This means that the usufruct holder is entitled to the rental income from a property, should they not choose to occupy the property. Fernando vs Perera (1914) 18 NLR 150 – Allotments of land bequeathed to the youngest daughter Isabella to possess and occupy the said 3 lands during her lifetime. A Usufruct can be acquired by Deed, Will and Prescription
- 13. Creation of Servitudes An Servitude created through Prescription will be recognized in these instances: (1) the servitude is adverse or contrary to the interests, and absent of the permission, of the landowner; (2) it is continuous and uninterrupted; and (3) it exists for over a period of 10 years. A creates and openly uses a right of way across B's land without B's permission. A Servitude is created by prescription.
- 14. Termination of Servitudes (1) the same individual becoming the owner of the dominant as well as the servient tenement where an appurtenant Servitude existed; Perera vs Samarakoon (1922) 23 NLR 502 (2) Amicable settlement (3) Releasing the Servitude by Deed (4) the abandonment of a Servitude.
- 15. case Thamboo vsAnnammah (1934) 36 NLR 330 One Co-owner cannot create a servitude without the consent of the other co-owners
- 16. case Fernando vsFernando (1929) 31 NLR 107 Servitude has to be claimed against the adjoining tenement. If not it should be proved that the intervening tenements are subject to the same servitude.
- 17. Case Cornelis vsFernando (1962) 34 NLR 113 If permission had been granted by the owner of a block of land by giving permission, a Right of Way cannot be claimed by Prescription.
- 18. case Selladurai vsChelliah (1951) 46 CLW 12 The Deed of Transfer of the dominant tenement carried the provision ‘with the appurtenances’ indicating that it conveys servitudes. But even if such words were not used a real Servitude attached to a property will pass.
- 19. case Wijesekera vsVaithianathan The Court held that the Right of Way was gifted personally and did not become an accessory of the property mortgaged.
- 20. case Corwell vsCasiechetty (1910) 14 NLR 340 Discharging waste water from a bathing well to the lower tenement