This week’s blog post looks into servitudes and what they encompass in the Zimbabwean context. Servitudes fall under the classification of documents that must, by law, be drawn and signed before a notary public.
What is a servitude?
A servitude is a limited real right that entitles the holder of such right, to use or to the enjoyment of another person’s property or to insist that such other person shall refrain from exercising certain rights of ownership over his property which he would have if the servitude did not exist. The Deeds Registry Act in Zimbabwe provides for the registration of and protection of rights to land and property granted by servitudes over a portion of another’s property.
Servitudes are usually utilized in wills or trusts wherein the testator or the founder grants heirs or beneficiaries the lifetime right to stay in, use, and enjoy the immovable property. Servitudes may also be mortgaged in theory, however, in practice, this is not a popular practice as it is not viewed as proper security by most creditors.
Classifications of servitudes:
There are two types of servitudes that may be registered against the property of a third party:
Personal Servitude
A personal servitude allows its holder in his/her personal capacity, certain entitlements of use, and enjoyment of the movable or immovable property of another for a specified period or for the lifetime of the holder. In terms of the law, the rights of use or enjoyment conferred by the servitude may not extend beyond the life of the holder, and may not be transferred by the holder to another as they are personal rights i.e. cannot be inherited by heirs or beneficiaries. However, the fruits which arise as a result of the rights in the property may be sold. It also seems that some personal rights can by agreement be made perpetual and transferrable. This only relates to mineral rights as the deeds act specifically states that registered personal rights over an immovable property are not transferable. Personal servitudes may be registered over both movables and immovable. Where it is over an immovable, it will be registered against the title deed of that property, if the servitude is intended to bind the successors in title. An example of a personal servitude is a usufruct which is a right to use and enjoy another’s property. A person can have a usufruct over another’s home and therefore have the right to use and enjoy that home for a period of time and to the limitation of the owner of that home.
Praedial Servitudes
A praedial servitude normally relates to two pieces of land. It grants its holder in his capacity as owner of land certain entitlements of use and enjoyment over the land of another: i.e. one piece of land serves another. A praedial servitude is vested in the owner of one piece of land, who is entitled to enforce it against the owner of the other adjacent piece of land. For a praedial servitude, the two lands must be adjacent and being close proximity to each other. It follows from the above that a praedial servitude is registered against the title deeds of both properties and the servitude binds successors in title of both lands. That is, should a person sell the dominant property, the new owner gains the servitude because he or she is now the owner of the land. Similarly, if the ownership of the servient land passes, the servitude still stands and the new owner of the servient land has to honour it.
These servitudes may only be registered by a notary public and may be cancelled by a notary after the lapsing of the servitudes i.e. regards personal servitudes, where the holder dies. Alternatively, the servitude may be cancelled by a notary following an agreement between the servitude holder and the property landowner. A servitude may also be ended by the destruction of the properties or when the need to exercise it no longer exists.
How to tell if there is a servitude registered over a property?
One can examine the title deed of the property to determine whether there are any servitudes over the property. If you are unsure how to do this, engage a legal professional. Regards movable property it may be challenging to ascertain if there is a servitude granted to another by the owner of the property as these are usually given in private agreement. It would be wise to specifically request the owner of the movable property to confirm that there are no servitudes.
Disclaimer:
The information and opinions expressed above are for general information only. They are not intended to constitute legal or other professional advice. For clarification, assistance, or any questions please contact Lex Amicus, by email at: lexamicus@outlook.com.
Lex Amicus 