2.6 Right in or to property
2.6.2 Difference between a personal right and a real right
Consequently, the question posed in the present case was whether the right of occupation was terminated when the house was demolished. The Court held that the true determination of termination should be whether restoration was feasible, because if the structure had been demolished but the land maintains its original capacity to be burdened as in the past, the servitude did not expire.310
The court therefore issued an order stating that the Kidsons had the right to exercise their right of habitat for the duration of Mr Kidson's life by rebuilding the house or by using alternative means of residence.311
Lastly, in contrast to the servitude of usus, a habitatio has the right to grant a lease or sublease to others.
b) Real security rights
As stated above,312 the most common limited real rights are servitudes and real security rights. Real security rights refer to the occurrence in which property is used as an object of credit security.313 In other words, the creditor acquires a limited real right in the property of the debtor as collateral for the payment of the principal debt.
There are different kinds of real securities. The most important distinction is based on the nature of the security object, i.e. the movable or immovable property. Real security rights include, but are not limited to, pledges, mortgages, cession in securilatem debiti and security granted by law in respect of the debtor's property to the creditor.314
There are considerable variations between a real right and a personal right. One of the key functional distinctions between the two rights is that it is only possible to register a real right in the Deeds Registry,316 while personal rights can only be registered in extraordinary situations.317
In Lorentz v Melle,318 certain conditions319 were created in a contract and registered at the deeds registry by way of a notarial deed. One of the conditions created an obligation to pay a sum of money to another person.320 According to the appellant, the agreement constituted a praedial servitude and, for that reason, was binding on the successor. The court, however, discussed whether the right to profit constituted a praedial servitude.
The court concluded that it was not a praedial, since the use of the servient tenement did not have a permanent attribute to it.
In Ex parte Geldenhuys,321 a husband and wife left a piece of land to their children in undivided shares. The will further determined that upon the eldest child reaching majority, the land would be divided in equal shares by way of drawing lots. The child who drew the portion upon which the house was built was obliged to compensate the other children by paying an amount to each of the other siblings. The registrar refused to register the conditions as it did not constitute a real right.322
In terms of section 102 of the Deeds Registries Act,323 a real right is “any right which becomes a real right upon registration”; therefore to constitute a real right in land, such has to be registered.
316 Section 63 of the Deeds Registries Act
317 Van der Merwe Sakereg 84.
318 1978 3 SA 1044 (T) (hereinafter the Lorentz case).
319 The parties to the contract agreed to subdivide a piece of land into three parts. The two owners each become an owner of first and second portion and both remained co-owners of the third portion. In the event that one of the parties begins to develop a township on their part, the other owner will be entitled to half of the profits of such development. See Van der Walt Introduction to the law of property 36.
320 Van der Walt Introduction to the law of property 36.
321 1926 OPD 155 (hereinafter the Geldenhuys case); also see Van der Walt Introduction to the law of property 35.
322 Van der Walt Introduction to the law of property 35.
323 47 of 1937 (hereafter the Deeds Registries Act).
According to section 63(1) of the Deeds Registries Act only potential real rights can be registered in the deeds office, at which instance to create a real right, it needs to be delivered to the holder thereof. Important to note is that registration in the deeds office results as delivery of such.
In terms of the common law, if a personal right does not burden a piece of land, it cannot be registered. A two-fold test has been developed by the courts as to whether a right should be registered or not, which is:324
a. the subtraction from dominium test;325 and
b. the question whether the parties had the intention326 that the condition should bind not only the present owner, but also his successors in title.
The common law further recognises three personal servitudes usufruct, usus and habitatio, which are often considered as estate planning tools by testators. A personal servitude is a real right granting the holder thereof, in his personal capacity, the right to do something on the owner’s property, or to prevent the owner from exercising some or other ordinary power as the owner thereof.327 Therefore, if the owner of the property is burdened with such servitude, it is only enforceable against the owner, and the servitude cannot be transferred by the holder. Servitude can come into existence by a will or by agreement between the parties.
As a personal servitude is personal to a person, it is not an asset in a joint estate,328 it cannot be alienated or bequeathed and "generally lapses on the death of the holder".329
324 Le Roux et al Explanatory Notes – Course in Notarial Practice Part 1 Chapter 6 7; also see Denel (Pty) Ltd v Cape Explosives Works Ltd and another; Cape Explosives Works Ltd v Denel (Pty) Ltd and others (1998) JOL 4198 (T) (hereinafter the Denel case); Pearly Beach Trust v Registrar of Deeds (1990) 4 All SA 615 (C) (hereinafter the Pearly Beach case); the Lorentz case 1044.
325 Geldenhuys case – that if a right constitutes a burden on the servient land and are a deduction from the dominium, it is a real right;also see the Denel, Pearly Beach and the Lorentz cases.
326 Lorentz case – the right is a real right if the parties had the intention to bind successors.
327 Van der Merwe Notarial Practice 132; also see Resnekov v Cohen 2012 1 SA 314 par 6; Badenhorst et al Silberberg and Schoeman’s The Law of Property 321.
328 Van der Merwe v van Wyk NO 1921 EDL 298.
329 Le Roux et al Explanatory Notes – Course in Notarial Practice Part 1 Chapter 6 10. S 66 of the Deeds Registries Act; also seeHall Servitudes 178; for further reading on usufruct, habitatio and usus also see Corbett, Hofmeyr and Kahn Law of Succession in South Africa 366.
2.6.3 Other like interest