A personal servitude (which constitutes the right to use and enjoy another person’s property) over immovable property may be created in a will, by agreement between two parties (bilaterally) or by a transferor in favour of him or herself (unilaterally) in the Power of Attorney to pass transfer.
Personal servitudes may be for a fixed term or granted until the occurrence of a future event and is enforceable by the personal servitude holder (the holder) against the owner of the property over which the servitude is registered. The holder cannot transfer his or her right to the personal servitude to a third party. The holder is obliged to preserve the substance of the property and has no entitlement to consume or destroy it.
If a property burdened by a servitude is sold, this is done subject to the servitude should the servitude not be cancelled before or simultaneously with transfer. An owner together with the holder may mortgage the property, alternatively the holder should waive his or her preferential claim in favour of the mortgagee. This is usually a requirement for bond registration.
Usufruct is the right to enjoy the property of another and to draw from that property all the profit, utility and advantage which it may produce. The holder may dispose of the right to use and enjoy the property and its fruits to a third party (for the duration of the usufruct), by sale, lease or loan and is entitled to all products of the land and all profits and revenues derived from the property. The property may only be used in the manner in which it was intended, unless a new manner of exploitation would be considered sensible under the specific circumstances.
The holder of a right to usus is restricted to the use of the property by the holder him or herself. The fruits of the property may only be taken for the holder and his or her family’s daily needs. The fruits may therefore not be sold nor the property leased out by the beneficiary, exceptions may occur under specific circumstances.
The right to habitatio is applicable to a dwelling. The holder has the right to dwell in a house with his or her family and may lease or sublease the property. A diagram needs to be submitted to the Deeds Office when a right to habitatio is registered excepting in the case of a sectional title unit in which case the registered sectional plan will suffice.
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- Common Law
- Regulation 73(2) of the Deeds Registries Act 47 of 1937
- Kidson and Another v Jimspeed Enterprises CC and Others (38574/08)  ZAGPPHC 30 (20 April 2009)
- RCR 17 of 2013
- Wikipedia - South African Property Law | Personal Servitudes