Asked by the Customer on 26-07-2015 15:45:55
Question posted in the Property Law category relating to Gauteng
Question posted in the Property Law category relating to Gauteng
I currently live on the remaining extent (RE) of a subdivision done in 1989. I bought my property in 2010 from Seller X. Seller X bought RE in 2003 and also acquired Portion 2 in 2003. RE, Portion 1 and Portion 2 make up the subdivisions.
In 2006, Seller X sold Portion 2 to Purchaser A and as part of the Offer to Purchase, Seller X specifically added an addendum to carve out a specific area of Portion 2 to be registered by Purchaser A (at the cost of Seller X) as an exclusive servitude for RE. Purchaser A signed and agreed to this.
The area of the exclusive servitude was intended to protect the driveway and a wall bordering that driveway.
Purchaser A sold Portion 2 to Purchaser B in 2013 who in turn sold it to Purchaser C in 2014. Purchaser A did not register the exclusive servitude as required in the 2006 Offer to Purchase.
Purchaser C is now accusing me of encroachment and wants me to remove that wall and a portion of the driveway. He says it is all my cost as I am encroaching.
The wall along the driveway was there before Seller X bought the property in 2003 and the driveway bricks have markings dating it to 1993.
I am in shock as I only came to know about this on 17th July 2015 and he gave me a deadline of 3 August 2015 to rectify the encroachment.
I am in fear Purchaser C will just demolish the wall and my driveway come 3 August 2015.
I wanted to get your opinion on the above and whether SA law would protect me or not?
In 2006, Seller X sold Portion 2 to Purchaser A and as part of the Offer to Purchase, Seller X specifically added an addendum to carve out a specific area of Portion 2 to be registered by Purchaser A (at the cost of Seller X) as an exclusive servitude for RE. Purchaser A signed and agreed to this.
The area of the exclusive servitude was intended to protect the driveway and a wall bordering that driveway.
Purchaser A sold Portion 2 to Purchaser B in 2013 who in turn sold it to Purchaser C in 2014. Purchaser A did not register the exclusive servitude as required in the 2006 Offer to Purchase.
Purchaser C is now accusing me of encroachment and wants me to remove that wall and a portion of the driveway. He says it is all my cost as I am encroaching.
The wall along the driveway was there before Seller X bought the property in 2003 and the driveway bricks have markings dating it to 1993.
I am in shock as I only came to know about this on 17th July 2015 and he gave me a deadline of 3 August 2015 to rectify the encroachment.
I am in fear Purchaser C will just demolish the wall and my driveway come 3 August 2015.
I wanted to get your opinion on the above and whether SA law would protect me or not?
Message from the Attorney
Posted by Att. Patrick on 26-07-2015 16:36:41
Hi there and thank you for your question,
A servitude (that hasn't been registered) is nothing more than a personal obligation owed by one person (in this instance, person A) to another person (person X), that will allow person X to do something. e.g. Person X wanted the right to use a portion of Person A's properly for the driveway and wall.
Unfotunately this right is personal in nature, which means that once Person X has sold his property, and once Person A has sold his property, the right falls away. UNLESS that right has been registered in the Deeds Office over the property. (i.e. Portion 2). That then becomes a registered servitude and binds all subsequent owners of the properties.
Unless a servitude is registered against the title deeds of the properties in the Deeds Registry, it will not be binding on subsequent owners of the property except if they were aware of it.
In this situation you don't have a registered servitude.
You can't even claim specific performance in terms of the offer to purchase, because neither you nor person B/C were parties to that offer. Also, Person X can't claim specific performance because he no longer owns either of the properties.
You therefore don't have either a personal right to use that portion of Person C's property (driveway or wall) and you don't have a real right to do so - in the form of a servitude.
On the face of it Person C's claims / demands that you stop using that piece of his land is a legitimate claim against you, one which could be enforced in court.
The question I have for you is, Does your piece of land (RE) have access to the road via another route, or is the only route available via the current driveway? The reason that I'm asking this is as follows:
- If there is an alternate point of access to your land, RE, then you won't be able to claim the NEED for access over Person C's land.
- BUT: If there is no alternate point of access to your land, then you can DEMAND (and claim in Court) the need to register a servitude over Person C's land (the driveway) so as to enable you to access your land. This is obviously quite a thing, and infringes on Person C's constitutional rights to his land. But the constitutional rights need to be weighed up. Your right of access to your land vs Person C's right of access to a tiny portion of his land.
This right is often called the 'way of necessity'. It does not require the consent of the servient owner, but will be granted if 'absolutely necessary'. e.g. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity.
However, this cannot be claimed in order to shorten the distance to the road, nor can the dominant owner insist on being granted the shortest or easiest route across the servient property. A way of necessity may be changed when a servient owner offers an alternative route that is no less convenient.
Let me know on the above.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
A servitude (that hasn't been registered) is nothing more than a personal obligation owed by one person (in this instance, person A) to another person (person X), that will allow person X to do something. e.g. Person X wanted the right to use a portion of Person A's properly for the driveway and wall.
Unfotunately this right is personal in nature, which means that once Person X has sold his property, and once Person A has sold his property, the right falls away. UNLESS that right has been registered in the Deeds Office over the property. (i.e. Portion 2). That then becomes a registered servitude and binds all subsequent owners of the properties.
Unless a servitude is registered against the title deeds of the properties in the Deeds Registry, it will not be binding on subsequent owners of the property except if they were aware of it.
In this situation you don't have a registered servitude.
You can't even claim specific performance in terms of the offer to purchase, because neither you nor person B/C were parties to that offer. Also, Person X can't claim specific performance because he no longer owns either of the properties.
You therefore don't have either a personal right to use that portion of Person C's property (driveway or wall) and you don't have a real right to do so - in the form of a servitude.
On the face of it Person C's claims / demands that you stop using that piece of his land is a legitimate claim against you, one which could be enforced in court.
The question I have for you is, Does your piece of land (RE) have access to the road via another route, or is the only route available via the current driveway? The reason that I'm asking this is as follows:
- If there is an alternate point of access to your land, RE, then you won't be able to claim the NEED for access over Person C's land.
- BUT: If there is no alternate point of access to your land, then you can DEMAND (and claim in Court) the need to register a servitude over Person C's land (the driveway) so as to enable you to access your land. This is obviously quite a thing, and infringes on Person C's constitutional rights to his land. But the constitutional rights need to be weighed up. Your right of access to your land vs Person C's right of access to a tiny portion of his land.
This right is often called the 'way of necessity'. It does not require the consent of the servient owner, but will be granted if 'absolutely necessary'. e.g. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity.
However, this cannot be claimed in order to shorten the distance to the road, nor can the dominant owner insist on being granted the shortest or easiest route across the servient property. A way of necessity may be changed when a servient owner offers an alternative route that is no less convenient.
Let me know on the above.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Thanks Patrick,
Given court case outcomes like Roseveare vs Katmer where the court awarded a servitude in favour of the encroacher vs demolition, should I not try to go to court?
I am innocent, I had nothing to do with this 'encroachment' which was there for over a decade and the other owners knew about and only now am I, as an innocent purchaser have come to know.
I am currently in debt and do not have the financial means to do this by 3 August 2015.
Who do I have recourse to? Do I have a constitutional right to fight this in court?
Given court case outcomes like Roseveare vs Katmer where the court awarded a servitude in favour of the encroacher vs demolition, should I not try to go to court?
I am innocent, I had nothing to do with this 'encroachment' which was there for over a decade and the other owners knew about and only now am I, as an innocent purchaser have come to know.
I am currently in debt and do not have the financial means to do this by 3 August 2015.
Who do I have recourse to? Do I have a constitutional right to fight this in court?
Message from the Attorney
Posted by Att. Patrick on 27-07-2015 08:47:53
Hi there,
Yes, you can go to court to enforce your rights, however my advice regarding the only means of access would greatly assist you!
If you were an innocent party, you should sue the person that you purchased the property from for a reduction in the purchase price. Maybe based on a failure to disclose. He should have told you that there was an unregistered servitude over that section of land.
You should write a letter to Person C to advise him that you are presently in possession of that section of land, and that he is not allowed to take the law into his own hands. Advise that he needs to obtain a court order before he tries to demolish the wall or the driveway. Explain that you have the right of access over that section of land, and only a court can take that away from you.
Make reference to the case that you cited above.
If he refuses, you will unfortunately need to go to court to interdict Person C from demolishing the wall as he has threatened to do!
You've got the right to fight it, and you very well might win, but you'll obviously need to fund the legal fight all the way to the Constitutional Court - if that is what it'll take.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Yes, you can go to court to enforce your rights, however my advice regarding the only means of access would greatly assist you!
If you were an innocent party, you should sue the person that you purchased the property from for a reduction in the purchase price. Maybe based on a failure to disclose. He should have told you that there was an unregistered servitude over that section of land.
You should write a letter to Person C to advise him that you are presently in possession of that section of land, and that he is not allowed to take the law into his own hands. Advise that he needs to obtain a court order before he tries to demolish the wall or the driveway. Explain that you have the right of access over that section of land, and only a court can take that away from you.
Make reference to the case that you cited above.
If he refuses, you will unfortunately need to go to court to interdict Person C from demolishing the wall as he has threatened to do!
You've got the right to fight it, and you very well might win, but you'll obviously need to fund the legal fight all the way to the Constitutional Court - if that is what it'll take.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
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