The concepts of servitudes and prescription

The greater Roodeplaat area with its bushveld atmosphere, is notably a haven for people who prefer outdoor living on smallholdings and small farms in these hectic times we live in today.

But over the past few decades – as the original farms of Roodeplaat, Kameeldrift, Derdepoort and others had been subdivided into smaller and smaller smallholdings – no doubt the prickly subject of servitudes and prescription would have surfaced in many a disagreement between neighbours.

Owners  of smallholdings and farms are probably aware of the fact that one can gain or lose rights to land through prescription.

If a boundary fence, for example, was positioned incorrectly and the owner of the property had the benefit of this portion of his neighbour’s property, then he will as a general rule, become the owner of this portion after a period of 30 years, on condition that his neighbour never objected.

The above principle of prescription also applies to servitude. If you benefit or enjoy, for example, the use of a right of way for more than 30 years without objection, then you will become the holder of that right. You may even loose this right should you not use it for 30 years or more through extinctive prescription.

It is important to note that praedial servitudes (servitudes attached to land) is indivisible and that prescription will not apply as long as you use any portion of the servitude.

It is further important to note that public servitudes (servitudes in favour of the general public), is not bound to the rules of prescription and that Section 9 of the Prescription Act 68 of 1969 expressly excludes public servitudes from the provisions of the Act.”

Google describes these terms as:

servitude is a registered right that a person has over the immovable property of another. It allows the holder of the servitude to do something with the other person’s property, which may infringe upon the rights of the owner of that property.

An easement by prescription is one that is gained under principles of a legal concept known as “adverse possession”, under which someone other than the original property owner gains use or ownership rights to certain property.

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