Servitudes are limited real rights in the property of another person. They have
their origins in ancient systems of feudalism. That is why many servitudes are
agricultural in nature – a right of way across the land of another, the right of the
dominant owner to graze or water his livestock on the land of the servient
owner, or the right to dig out chalk, sand or stones on the servient land for use
on the dominant land.
Other servitudes received from Roman-Dutch law are less rural and more
urban in nature, such as servitudes of light, discharge of water from one
property onto another, and restrictions on building. Some of these have lost
most or all of their significance because of the development of modern urban
planning and building regulations.
An important distinction exists between praedial servitudes which vest over the
servient tenement in favour of the owner of the dominant tenement, regardless
of the personal identity of the owners of either tenement at any given time, and
personal servitudes which also vest over a specific servient property
regardless of the identity of the owner at any given point, but is in favour of a
specific person in his or her personal capacity, regardless of whether that
person owns any property.
This comprehensive study of servitude law is the first extensive work on the
subject for many years. It sets out in detail the current state of the law of
servitudes, including the common law, its development through the courts in
case law, and in legislation.
But it goes much further and evaluates the state of the law in the light of the
social, economic and political functions of servitudes. The constitutional
context and policy considerations are taken into account, bearing in mind
changed circumstances, the unequal distribution of land, urban densities,
housing shortages, environmental pressures and the tension between freedom
and access on the one hand, and security of ownership on the other. The
needs of the modern economy are considered as far as servitudes are
concerned, where both the retention and the relaxation of traditional antifragmentation
controls can be justified insofar as they improve the conditions
for efficient use of land.
The author, Distinguished Professor André van der Walt B Jur et Art Honns
(BA) LLB LLM LLD, South African Research Chair in Property Law at
Stellenbosch University, has included comparative notes throughout the text
on selected foreign law where appropriate which further places the law relating
to servitudes in the context of land use, policy and principles in various
jurisdictions. These contributions on foreign law by Lars van Vliet PhD,
Assistant Professor of Dutch and Comparative Property Law at Maastricht
University, further elevate the breadth and insight of this magisterial textbook.
Separate chapters deal with every aspect of the nature, acquisition and
termination of servitudes, the relationship between the servitude holder and the
servient owner, and the full range of praedial, personal, statutory and, public
Legal practitioners, property owners, financial institutions, urban and regional
planners, local and traditional authorities, legislators, environmentalists and the
mining and agricultural sectors will find this welcome resource invaluable. As
always with publisher Juta, the quilt has been craftily woven and stitched
together with skill and aplomb, keeping the end-user in mind, and incorporating
a comprehensive index, bibliography, tables of cases and applicable
legislation, and pertinent footnotes where required. This book will serve as a
handsome lynchpin of Juta’s Property Law Library.