A servitude is a right which one property owner holds over a neighbouring property. A common example is a right of passage or pipeline or storm water servitude. The servitude is registered against the title deeds and binding on successive owners in perpetuity.

Consequently, changing a registered servitude over a property without the consent of the property owners has often provided the ingredients for disagreement.

Now, however, the judgment in the case of Linvestment CC vs. Hammerlsey means that if there is a registered servitude, which is operating in a prejudicial and unreasonable manner against the owner of the property over which it is registered, he may now seek the assistance of the Court.

Andrew Donnelly of Shepstone & Wylie's litigation department says that in this case the Supreme Court of Appeal had to grapple with whether a property owner could vary the terms of a registered servitude without the consent of the holder of the servitude.

Linvestment the (appellant) applied to the Court for an order amending the path of an existing servitude over its property and was prepared to pay all costs related to the change, to ensure that the amendment of the servitude did not inconvenience or prejudice Hammersley (respondent) in whose benefit the servitude operated.

The respondent refused to agree to the proposed servitude amendment and maintained that as a matter of law once servitude had been registered in the title deeds it was not capable of variation without the consent of both property owners.

The Supreme Court of Appeal (in the form of Judge Jonathan Heher JA) concluded Roman and Roman Dutch authorities held that a registered servitude could not be changed without the mutual consent of both property owners. Nevertheless the Court accepted the duty and challenge that it was obliged to make and modernise the law from time to time.

It decided that it was in the interests of justice and in line with international trends to follow a more flexible legal approach and held that if a proposed change is reasonable then a Court may vary or modify the terms of a registered servitude without the consent of the property owner who enjoys the benefit of the servitude.

For more information contact Megan Pennefather at Shepstone & Wylie Attorneys on 031 3020333 or Pennefather@wylie.co.za