PROPERTY B (FINAL)

EXAM PREP ANSWERS AND QUESTIONS

SERVITUDES

REAL SECURITY

POSSESSION

Servitudes questions and answers & case law

Questions on SERVITUDES

A servitude is defined as a limited real right registered in the deeds office.

The one holding the servitude is the holder and owner of the property is called a servient.
Entitlement of the owner is limited by the servitude. A servitude must be registered in a title
deed. If it so happens that there is a dispute of whether there is a servitude or not, the holder
of the servitude has the burden to prove and must establish who is the owner or the servient.

Lorentz v Melle 1978 define Servitude

A servitude is a right belonging to one person in the property of another entitling him either
to use and enjoy the property in some way, or prohibiting the owner of the property from
exercising one or other of his normal rights of ownership. It “subtracts from the dominium”
of the owner.

1|Page
Exercise 1

1. The legal issue relates to the establishment of a praedial servitude by a court order. A
praedial servitude means one has a limited real right that vest in successive owners of
one piece of land (dominant tenement), which derives a benefit from another piece of
land (the servient tenement).

I have been instructed by Mark to approach the Eastern Cape High Court with an
action to establish a Praedial servitude. A praedial servitude is one that involves two
parties and two pieces of land. It constitutes a burden imposed in one piece of land in
favor of another. There are different types of servitudes. the two types consist of rural
and urban servitudes. For the purpose of this question only a rural servitude will be
explained. Under rural praedial servitude there are three categories which include the
right of way, the water servitude and grazing servitude. Only a way of necessity will
be discussed.
Explanation of way of necessity
a way of necessity is one of a praedial servitude with special requirements. A right of
way may take form of a right of foot path. The right to drive cattle or drive vehicle
across the road. It does not require the consent of the servient owner because it is
imposed by the court, in order for the other party to successfully satisfy the court that
she or he need the servitude that party must be landlocked. This means that they have
no direct or reasonable sufficient access to a public route.

The following are the guiding principles, the road allocated must be that which cause
least damage to the servients land. The chosen land must not unduly prejudice the
servient land. It must be the shortest route to the public road.
Requirements:
The requirements were established in the case of Van Rensburg v Coetzee.
The particulars of claim must allege the particulars of necessity. They must allege the
reason why the way of necessity must transverse the defendants land.
The width of the land and the grounds to which it is to be done
A particular route should be indicated for the courts consideration
And the last requirement is a reasonable compensation should be payable.

2|Page
 Application
It is evident from the given facts that Marks farm is landlocked and this means that
mark does not have access to the public road
The necessity alleged is the right for foot path and the right to drive vehicle. The
second requirement: in the Northern Boundaries of both farms there are outcrops of
solid rocks where fynbos growed rampantly, it is only the west of the Andrew farms
route that is available to Mark. This means the Northern South there can’t be way of
Necessity. The ground will be the West of Andrew’s farm. The West of the Andrew’s
farm will be the chosen route and the last requirement is the compensation, only has
to only pay for compensation if it’s a permanent servitude. In the facts before there is
no retention of whether this servitude would be a permant right of way or it would be
used in emergencies. If in the facts they had mentioned that it is a permanent servitude
then a reasonable payment must be made.

2019 paper (Personal servitude )

2b) the legal issue – how Josephine can protect her assets from her brother.
Furthermore, we have to assess the rights and her brothers obligations in this
instance.
Before we address the issue we have to establish the right that Josephine has in
the assets.
There are two rights that a person can have in a property and on the one hand is
the real right and on the one hand is personal right. The focus for this answer
will be on the real right. In this instance it is a real right. There are two types of
real rights which are ownership and limited real right. Ownership can be defined
as having all absolute and complete right to the property. It’s the only real right
that one can hold in respect of ones own property. By contrast limited real right
are limited rights that are held by someone other than the owner of the property.
Limited real rights they limit the ownership rights. These ownership rights are,
the rights to use to property, the right to enjoy the property, the right to
mortgage the property and the right to sell the property.
Limited real rights

3|Page
 These include servitudes and real security rights. Josephine as the owner of the
asset she has ownership rights. However, the ownership right is limited by a
limited real right in a form of a servitude by Jacob. This makes Jospehine the
servient owner of the asset and then Jacob the holder of the servitude in the
assets.

What is a servitude?
Servitudes are a limited real right, in respect of movable and immovable
property. This servitude right entitles the holder to the specified uses of property
belonging to another. And consequently they restrict the exercise of ownership
entitlements of the owner of the assets. A servitude gives the servitude holder
some of the ownership and entitlement in the property of another which results
then into the limitation of the ownership entitlement by the owner. The
relationship between the holder of the servitude and the owner of the servient
property is as follows:

Firstly the holder of the servidtude has priority in regards to the exercise of the
particular entitlement covered by the servitude. What this means is that the servient
owner may exercise all the usual entitlement of ownership but may not impair the rights
of the servitude holder. This therefore means, Jacob as the holder of the servitude has
priority in respect of the farm. Josephine may not impair the rights of Jacob.

Preferably the servitude holder is entitled to perform all acts necessary for the proper
exercise of the servitude. However, the exercise of the servitude must be exercised in a
way that causes as little convenience as possible. In the given scenario Jacob, is required
to exercise his servitude right in a way that cause little convenience to the servient
owner which is Josephine.

The Law

In case there is any dispute with regards to the existence of the servitude, the court in
the case of Ley v Ley Executors held that the person who alleges the existence of a
servitude must prove it on the balance of probabilities. This is all because there is a
rebuttable presumption that the ownership is free from any servitude. The property
does not have any burden or impediments.

4|Page
Should this dispute arisebetween the parties in the given scenario, the one who alleges
the existence of the servitude has the onus to prove it and the standard is on the balance
of probabilities.

Types of servitudes

There are two types of servitudes, there is a praedial servitude and a personal servitude.
For the purpose of this question, the focus will be on personal servitude. In the ccase of
Louren v Melle, the courts define define a personal servitude as a limited real right
which may be held in respect of either movable or immovable property. The personal
servitude is tied to the holder of the servitude because it benefits the holder in his
personal capacity. This means that this personal servitude cannot extend beyond the
lifetime of the holder and it cannot be transferred to a third party. If the holder of the
servitude is a juristic person the servitudes terminates after 100 years.

There are several types of personal servitudes:

The most common one in SA is the ususfruct, the right of use and the right to occupy a
house. In the given scenario, Jacob was given a personal servitude in the form of a
usufruct.

A usufruct is defined as a personal servitude that entitles a persn to use and enjoy
another property and to draw itss fruit without impairing the substance of the property.
This means that Jacob has been given the right to use and enjoy the farm which is the
property of Josephine as well as the fruits of the farm. However, his servitude exercise
must not impair the substance of the family which is the farm. The fruits of the farm
can be natural fru its as well as civil fruits. Civil fruits are the interest on the capital
investment for the rental income. The natural fruit are the crops of the farm and the
young livestock. The civil fruits are acquired as soon as they become due by the
servitude holder. The natural fruits are acquired by the servitude holder when they
have been gathered by the servient owner. This means that ungathered proof remains
the property of the owner subject to the usufruct.

On the given scenario, Jacob can enjoy natural fruits of the farm which are the olives as
well the young livestock of the sheep, Jacob has to wait until the natural fruits are
gathered because the ungathered fruits remains the property of the owner being
Josephine in the given scenario.

5|Page
The obligation of the servitude holder:

The usufruct must use the property reasonably. This means that he must use the
property for the purpose for which it was intended. The second one is that the servient
owner may require the holder of the servitude to draw up an inventory of the property
under the usufruct and to give security for the proper use and eventual return of the
property. Usually a usufruct is not entitled to compensation for improvements made to
the property. However, to maintain compensation for extensive necessary incurred for
the preservation of the property. The usufruct may not animate or mortgage the
property as these are the entitlement of the owner of the property. The owner may not
interfere or prejudice the servitude holders rights. In this scenario given, it can be
stated that Jacob failed to uphold his obligation as the servitude holder. This is so
because, Jacob has failed to draw up an inventory of any assets and he has also sold or
destroyed the principal asset which is a violation of Josephines right as the owner of the
property. He also failed to maintain the olives tree and also sold the sheep in the farm.
This shows that Jacob failed to use the property reasonably ..

How Josephine can protect the assets from further destruction:

Remedy: the first remedy that will be used is Interdict. An interdict can be defined as a
court order that has the power to compel someone to do something or prohibit. There
are two types of interdict, there is a mandatory interdict and prohibitory interdict. A
mandatory interdict is used to compel the wrongdoer to do something and then the
prohibitory interdict may be used to prohibit the doer to do something. In the given
scenario , Josephine can use a mandatory interdict to compel Jacob to exercise his
servitude right in a reasonable manner and in a way that causes little convenience to her
as the owner of the property.

Secondly Josephine can also compel Jacob to draw up an inventory for the property
and give security for the proper use. As these are the rights of the servitude holder.

With a prohibtory interdict, Jacob may be prohibited from further wrongdoing such as
destroying and burning the principle assets that are subject to the usufruct. These are
the remedies that Josephine can use to protect the property from further destruction.

6|Page
PRAEDIAL SERVITUDE

2019 PAPER

The Legal issue: whether the facts above satisfy the requirement for the praedial servitude.

The legal answer to be answered in this question is what applicable principles should the
Dutcch company prove in order for their application for a servitude to be successful

The second legal issue is where would be the best location be to place their servitude.

In order to answer this question, all the applicable principles relating to the relevant servitude
will be discussed.

Define Servitude:

A servitude can be defined can be defined as a limited real right. Limited real right that are
carved out the full entitlement of the owner and are exercised by another person. In this
regard, a servitude holder has limited real right in the property of another. In other words, this
means one cannot have a servitude in ones own property.

The relationship between the servitude holder and the owner of the property

Firstly, the holder of the servitude has priority, in respect of the property that is covered by
servitude. This therefore means that the owner of the property may exercise all the usual
entitlement of ownership but may not impair the right of a servitude holder. Secondly, the
servitude holder is entitled to perform all acts necessary for the proper exercise of the
servitude. This means the holder of the servitude must exercise the servitude so that it causes
little inconvenience as possible to the servient owner. Lastly, the burden on the servient
property must not be increased beyond the expressed or implied terms of the servitude.

Application

In the given facts, the above means that if a servitude is created between the Dutch Company
and the land owner in question. The dutch company will have priority in regards to the way
of necessity in question. The land owner may exercise all the usual entitlement of ownership
but cannot impair the rights of the servitude. Secondly, the dutch company will be required or
will be entitled to perform all Acts necessary for the proper exercise of the servitude.
However, this exercise of the servitude must exercise so to cause little inconvenience as

7|Page
possible. Lastly, depending on the terms of the contract the burden on the servient property
must not be increased beyond the express of implied terms of the servitude.

TYPE OF SERVITUDES

There are two types of servitudes, personal and praedial servitude, for the purpose of the
given question, only a praedial servitude will be discussed. This is so because the dutch
company has approached the land owner with the request for a way of necessity which is one
of the types of a praedial servitude. This falls under the tpyes of praedial servitude.

Define Praedial Servitude

A praedial servitude is a servitude that exists in respect of a land and involves two pieces of
land.

Requirements for Praedial Servitude:

A praedial servitude requires two pieces of land and two parties.

The praedial servitude must benefit the owner of the dominant tenement in his capacity as the
owner of the land. The tenement needs not to be contagious but must be close enough to each
other so that the servient tenement can reasonably enhance the use and the enjoyment of the
dominant tenement. The benefit of a praedial servitude must not satisfy merely the pleasure
of a person who happens to be the owner at that particular point. But must benefit the
dominant tenement itself. The use made of the servient must be based on some permanent
feature or attribute to the servient land. These requirements are requirements for an
established praedial servitude and not of the way of necessity. The next part of the analysis
will focus on the requirement of way of Necessity. So for the registration of a praedial
servitude one piece of land must serve another piece of land. In practice the land should be
bound in favour of other land, and no reference to the owner should be made, as the servitude
could be interpreted as personal, that is, one which terminates on the death of dominus
(mentioned in the case of Resnekov v Cohen 2012 (1) SA314(WCC).6

 Praedial servitude must enhance the use and enjoyment of the dominant tenement –it
must be of use or benefit to the dominant tenement and not merely satisfy the owner’s
whim and fancies (De Kock v Hanel 1999 (C))

Way of Necessity:

8|Page
The way of Necessity is of a praedial servitude with special requirements. It could take a
number of different forms and this includes the right to use a foot path, the right to drive
cattle and the right to drive a vehicle. In the given scenario, it is evident from the fact that the
Dutch company requires the way of necessity to drive vehicles across the land. Unlike other
servitudes, the way of necessity does not require the consent of the servient owner. This is so
because, this type of a servitude is imposed by the court. In the given scenario, this means
that if the Dutch company can prove to the court that they should be granted the servitude
then the court will impose the servitude. The consent of the land owner will not be required.
A way of necessity have the landlock tenement. This is so because the court imposes the way
of necessity if it is necessary to access the public road. However, before the court can impose
this servitude the requirements from the case of Van Rensburg v Coetzee must be satisfied.
The particulars of claim must allege the particulars of necessity as well as the reason as to
why the way of necessity must transverse the defendant land.

The width of the way claimed and the grounds to which it must be done must be stated. A
particular route should be indicated for the courts consideration. Reasonable compensation
may be imposed by the court. In satisfying this requirement, the following guidelines should
be considered. The right of way may not be imposed on merely conveniency. There must be a
necessity to access the public road. The way of necessity allocated must be the one that
causes least damage to the servient owner. The servitude must not unduly prejudice the
servient owner because if it is likely to cause prejudice then the court will not impose a
servitude. The last principle, it must enable the shortest route over the servient tenement.

Application

The above means that the dutch company needs to prove this requirement in order for the
application for their servitude to be successful. Based on the facts, it is evident that the way
of necessecity that is requested by the Dutch company is on the East of the Land owner
property and needs to run 4km to the nearest eskom power station. It is also worth noting that
on the east of the Land owners property there is a resort in which the landowner has invested
large amounts of money. Furthermore, the money that is raised in the resort supports the local
economy and helps. At the northern boundary, the resort is only 3km from the station where
as the requested land is 4km. based on these facts, it is evident that the dutch company will
not be able to satisfy the requirement. The best place that they can place the servitude is on
the Northern boundary of the resort. This is so because the Northern boundary enables the

9|Page
shortest route which is 3 Km from the power station. However, the southern boundary is
more than 6km which is farther than 3km. this is the better place to place the way of necessity
as it will not cause undue prejudice to the landowner. However if the ay of necessity is
imposed on the east of the land owner property, it will cause undue prejudice to the
landowner. The undue prejudice that the landowner will suffer is that he has to demolish his
resort because the Dutch company are required that the power line and the infrastructure be
laid underground. The servitude must be one of exclusive use as a result no person or animal
may cross it. This will affect the business ran by the land owner because people will not be
able to book the guest and the animals from the resort will not be free to roam around

Case law

Linvestment CC v Hammersley and another 2008 (3) SA 283 (SCA) Case summary

– Servitudes (servient tenement, changing of route)

Facts: Appellant’s property is subject to two registered servitudes in favour of the first
respondent (both of them pertaining to a right of way). In court a quo, appellant maintained
that he wished to change the route of the defined right of way. He would do so at his own
cost. Respondent in court a quo refused. Appellant, in appeal to this court, maintains that
refusal was unreasonable and that the new right of way by no means inconveniences the
dominant tenement.

Question of law: Can the owner of a servient tenement, of his own volition, change the route
of a defined right of way registered against the title deed of his property?

Reasoning: Court referred to Voet – a definite servitude having been constituted can only be
changed through mutual consent. Court then maintained that one should distinguish between
servitudes that are generally stipulated and those that are specifically defined – as is the case
in the present instance. Appellant also maintained that the dominant tenement should make
use of servitude in a civilised fashion and that his appeal should be granted. However, court
held that a ‘civilised fashion’ by no means synonymous with the waivering of one’s rights.
Court then invoked its inherent power to develop the common law ‘taking into account the

10 | P a g e
interest of justice’ Referring to foreign law dealing with the same issue, he came to the
conclusion that SA law’s adherence to 17th century principle was out of date. Appellant may
therefore succeed provided that the respective interests of both parties can be regulated by
reliance on the concepts of convencience and prejudice.

Outcome: Court ruled as follows:

A dominant owner is to accept a servitudincal relocation provided that:

1. The servient owner will not materially inconvenience the dominant owner.

2. The relocation occurs on the servient tenement.

3. The relocation will not prejudice the owner of the dominant tenement.

4. The servient owner pays the costs pertaining to such relocation including the amendment
of registration of the title deeds of the servient tenement (and dominant tenement)

Conclusion: Servitude usually registered against the title deeds of the servient tenement (but
can also be registered against the title deed of the dominant land.

Nach Investments- requirements for a way of necessity. (Praedial servitude) WAY OF

NECESSITY.

- Talk about width how it can be general

- Talk about the width requirement. Width of servitude must be allocated.
- When its general then it burdens the whole tenement.
- The explanation- when we talk about it being General its drawn from the Linvestment
case
- From the Nach Investment case the court held that the determination of the route is
not essential
- The court further held that if there is no specification the route is to be determined by
agreement and then the validity of the agreement may depend on the intentions of the
parties will depend on the intentions of the party.
- If the intention is to constitute a specific right of way, then that agreement must be
held

11 | P a g e
 - The agreement is also valid if the general servitude is intended and if there is
reference to the future agreement.
- -PERSONAL SERVITUDE CASE LAW
- KIDSON V JIMPSEED CASE- this one you use it when talking about habitation
- The servitude holder left the place due to circumstances and the person who took over
alleges that a servitude was not created and he was not aware of the existence of the
servitude when he purchased the land and he also argued that the applicant abandoned
any rights to the farm when they left it originally . when the house was demolished,
the house was terminated. The courts position was that the servitude was not
abandoned and the certificate of registration served a prima facie proof that a
servitude of habitation was granted and the courts held that the servitude was valid
and enforced.
- The second thing was that the applicant were entitled for as long as the grantee lives
to exercise the right of habitatio of the land in question.
- The applicant was also entitled to all other rights to which they had been entitled
when they occupied the original farm and outbuilding.
- They were entitled to make use of the farm yard for the purpose of cultivating their
own vegetables and fruit for personal use.

- Case 2 Cowley v Hahn

- What is a usufruct and how the usufruct can exercise the right in relation to the
property.
- The court had to address: whether the usufruct over an immovable property is an
interest in land.
- There was an usufruct made
- The court held that a usufruct is a personal right that is held by a usufructarty only to
use and enjoy the property as well as its fruits
- The court went on to say that as a limited real right it does not diminish the right of
ownership and it is only the interest that can be alienated by a usufructary and no the
property itself. This means that the owner may be able to exercise any other rights
without the consent of the usufructuary.

12 | P a g e
 - The last question the court had to answer was whether a usufruct is capable of being
terminated. The court held that being the nature of a personal servitude the right
which it conversed is inseperatably attached to the usufructuary.
- The court said that it cannot continue beyond the usufructuary date of birth.
- However the court did not answer the question as to whether the usufruct can be
alienated by the usufructuary during his life time.
- The usufruct need not to be registered against the title deed and is non- the less
binding
- This case u use when talking about the principes of a usufruct.
- The court did not answer the question when what happens when the usufructuary is
still alive and he wants to terminate..

- Case law on Creation, termination and enforcement of Servitudes

- Section 25 of the sectional titles act talks about creation of a servitude

- Section 75- who has the power to register a praedial servitude – it has to be a
Notary mandated by law to register a praedial servitude. Section 75 must be
read together with section 76- which gives requirements for the creation of a
praedial servitude

- Werner v Florauna case law- when servitude is created for a public…. U have to
prove the doctrine …

- The question before the court was whether a basis exist for the registration of a
servitude of a right of way in favor of the public over a fixed property.

- Paragraph15- the court held that, a servitude in favour of the public is created
by means of a grant of ownership of the land by the state. Subject to the
reservation of the so called public servitude. The existence of such servitude can
be ascertained by proving the requirement.
Pickard v Stein 2015

13 | P a g e
 - The onus of proving the entitlement to a servitude over a servient property rest
on the person who assets its existence.

- Here the court had to consider whether the servitude was abandoned or has
fallen off.

- A servitude may be terminated if it has been abandoned

- The court held that the abandonment can be either expressly or tacitly implied

- When it comes to tacit abandonment it can be inferred by the conduct of the

relevant parties.

- This conduct can be bilateral

- The court held that Steyn had abandoned her real right when she gave Parct the
right to build a wall as such the court orderd for the cancellation of the
servitude.

- personal servitude’ questions

- legal issue
- If the question asks about the rights of the party- chapter 3 of textbook
- The rights that one has are personal and real rights chapter 3 and page 43
- Based on the definition the party has ------- hence this makes the party a
servitude owner or ------
- If its on ususfruct, there types of personal servitudes… usufruct
- If its not on rights start explaining servitudes and the relationship and then you
go to the types of servitudes
- If it ask about the enforcement then talk about remedies at the end.
- Declaration order- when the parties argue that the servitude argue that a
servitude exist and the other one states that it does not exist.

14 | P a g e
 - If there is no dispute on the existence of dspute then its an interdict and damages
- Or a scenario where everything applies. Read questions thoroughly
- APPLICATION……… and close off!!!!!!

TEST QUESTION Answer mark got(100%)

1. The legal issue is whether Ed, Emily and Amy have any real rights or say as to the
actions being made by Tommy. Before we address the issue we have to establish the
right that Ed, Emily and Amy has in the property. There are two rights that a person
can have in a property and on the one hand is the real right and on the one hand is
personal right. The focus for this answer will be on the real right. In this instance it is
a real right. There are two types of real rights which are ownership and limited real
right. Ownership can be defined as having all absolute and complete right to the
property. It’s the only real right that one can hold in respect of ones own property. By
contrast limited real right are limited rights that are held by someone other than the
owner of the property. Limited real rights they limit the ownership rights. These
ownership rights are, the rights to use to property, the right to enjoy the property, the
right to mortgage the property and the right to sell the property.
Limited real rights
These include servitudes and real security rights. Jimmy as the owner of the asset as
he was left with the olive farm and sheep. H e therefore has ownership rights.
However, the ownership right is limited by a limited real real right in a form of a
servitude by HE second wife Emily. This makes Emily the servient owner of the asset
and then Jimmy the holder of the servitude in the assets.
According to the case of Lorentz v Melle 1978, A servitude is a right belonging to one
person in the property of another entitling him either to use and enjoy the property in
some way, or prohibiting the owner of the property from exercising one or other of his
normal rights of ownership. It “subtracts from the dominium” of the owner. Firstly
the holder of the servidtude has priority in regards to the exercise of the particular
entitlement covered by the servitude. What this means is that the servient owner may
exercise all the usual entitlement of ownership but may not impair the rights of the
servitude holder. This therefore means , Jimmy as the holder of the servitude has
priority in respect to the olive farm and sheep. Emily may not impair the rights of
Jimmy. Preferably the servitude holder is entitled to perform all acts necessary for the
proper exercise of the servitude. However the exercise of the servitude must be
exercised in a way that causes as little inconvenience as possible. In the given
scenario, Emily is required to exercise her servitude in the right way that causes little
inconvenience to the one who has priority in respect to the olive farm and sheep.

15 | P a g e
 In case there is any dispute with regards to the existence of the servitude, the court in
the case of Ley v Ley Executors held that the person who alleges the existence of a
servitude must prove it on the balance of probabilities. This is all because there is a
rebuttable presumption that the ownership is free from any servitude. The property
does not have any burden or impediments.
Should this dispute arisebetween the parties in the given scenario, the one who alleges
the existence of the servitude has the onus to prove it and the standard is on the
balance of probabilities.
Types of servitudes
There are two types of servitudes, there is a praedial servitude and a personal
servitude. For the purpose of this question, the focus will be on personal servitude. In
the ccase of Louren v Melle, the courts define define a personal servitude as a limited
real right which may be held in respect of either movable or immovable property. The
personal servitude is tied to the holder of the servitude because it benefits the holder
in his personal capacity. This means that this personal servitude cannot extend beyond
the lifetime of the holder and it cannot be transferred to a third party. If the holder of
the servitude is a juristic person the servitudes terminates after 100 years.
There are several types of personal servitudes:
The most common one in SA is the ususfruct, the right of use and the right to occupy
a house. According to the case of Cowley v Hahn, the court held that a usufruct is a
personal right that is held usufructuary only to use and enjoy the property as well as
its fruits. The court went on to further state that as a limited real right it does not
diminish the right of ownership and it is only the interest that can be alienated byy a
usufructuary and not the property itself. This therefore means that the owner may be
able to exercise any other rights without the consent of the usufructuary. Emily was
given a personally servitude in the form of a usufruct. This means that Emily had been
given the right to use and enjoy the dream home at 22 Pebble Beach, in olive Glove
for the duration of her lifetime. However her servidude exercise must not impair the
substance of the family which is the olive farm and sheep. The fruits of the farm can
be natural fruits as well as civil fruits. Civil fruits are the interest on investments
maybe, the reputation of the farm because there is growing of marijuana on the
property and loud parties causing noise pollution and low maintenance. the natural
fruits are acquired by the servitude holder when they have been gathered by the
servient owner. This therefore means that ungathered proof remains the property of
the owner subject to the usufruct. On the given scenario, Emily can enjoy and use the
pebble beach house she was left with and she should not burden the Jimmy. Emily
may use and enjoy the farm as she pleases because she has the right to use and enjoy
the property.

The obligation has the servitude holder

The usufruct must use the property reasonably. This means that she must use the
property for the purpose for which it was intended. The second one is that the servient
owner may require the holder to draw up an inventory of the property under the
usufruct and to give security for the proper use and enjoyment. Usually a usufruct is
not entitled to compensation for improvements made to the property. However, to
maintain compensation for extensive necessary incurred for the preservation of the

16 | P a g e
 property. The usufruct may not animate or mortgage the property as these are the
entitlement of the owner of the property. The owner may not interfere or prejudice the
servitude holders rights. In this scenario, Emily did not fail to live up to her side of the
bargain. The parties that should be evicted should be Ed and Amy. Emily has the
limited real right and has right to enjoy the fruits of the farm and use and enjoyment
so she cant just be evicted. Yes Jimmy holds the real right but that does not give him
authority to evict the mother Emily because she still has the limited real right over the
assets hence she can do what she pleases as shes allowed to use and enjoy the
property. She did not burden Jimmy, but the third parties did. Hence, Jimmy should
not have taken a rash decision to evict Emily but instead alert her on what the young
couple had been doing. From the case she seems old and therefore, she probably does
not seem to know what had been happening. She could have alerted the couple to
reduce noise and not allow them to grow marijuana in the farm. If they did not abide
then maybe Jimmy would hve issue a mandatory interdict to compel the wrongdoers
to do something about their behaviour. To protect his farm from destruction or illegal
activites from happening. Not to evict because Emily still has her limited real right
and she cant just be evicted.

REAL SECURITY questions

o a real security is a form of a limited real right.

o For a real security object can be movable or immovable
o Real security – limited real right that one can have in respect of the property
of another.
o The reason why we have real security – when a creditor lends someone money
they run the risk that the debtor may not return the money. The law has
provided some protection to reduce the risk.
o One of the protection that has been created to reduce the risk is where debtor
is unwilling to pay the debt. The creditor may apply for a court order that will
instruct the debtor to pay the debt.
o If the debtor fails to comply with the court order, the creditor will enforce the
court order by issuing the writ of execution.
o That writ of execution it allows the sheriff to attach and sell the property of the
debtor and use the proceedings to pay the creditor.
o The second protection is that – if the debtor is unable to repay the loan, then
the creditor will apply for a court order that will declare the debtor insolvent.

17 | P a g e
 o Once the debtor has been declared insolvent, a trustee is appointed to deal with
the debt of the debtors.
o What the trust will do is sell the assets of the debtor and then use the
proceedings to pay the creditors.
 Reasons why the two protections won’t be beneficial
 1. The debtor might have dispossessed all his assets, so if there are no
assets, there are no attached to attach to. Hence creditor cannot attach
anything.
 2. The debtors liability may exceed his assets, the debtor has some assets
but the asssets are not enough to cover the amount of the debt,
 It might be possible that the debtor more than one creditor, now if this is
the case, once the assets have been sold in execution the proceeds of the
sell must be shared equally between the creditors, this will result in
creditors being paid only a portion of what is owed to them.
 So now to solve this is to have a real security right.
 The creditor lend money to a debtor if the debtor is willing to provide
security for the repayment of the debt.
 The person must first provide security

2types of security in SA

 PERSONAL SECURITY RIGHTS

 REAL SECURTIY RIGHTS

Personal security

 This is a right, that gives a creditor a personal right against the third
party who undertakes to settle the principle debt if the debtor is unable
to do so.
 The third party who is willing to provide security for the debtor, may
make her property available as well.
 These type of a security, it gives right to a claim against the person who
agreed to settle the principle amount of the debt.
 These types of security are governed by the law of contract and law of
delict.

18 | P a g e
  One example is a surety contract. There has to be a 3rd party involved.

REAL SECURITY RIGHTS

 They give a creditor a limited real right, in the property that belongs to the
debtor
 The debtor agrees that creditor can use the property to settle the principle debt.
Should the debtor fail to do so.
 Real security are divided into 3 categories:
 1. Tacit real security rights
 2. Judicial real security rights
 3.Express real security rights.

Express Real Security Rights

 They are created by an express agreement, between the creditor and the debtor
e.g pledge , mortgage and notorial bond.
 Tacit real security rights- they are created by an operation of law (even there
is no agreement, by operation of law they will operate). E.g lessor tacit
hypothec. Creditors grantor tacit hypothec and your lien and then your
statutory security rights.
 Judicial real security rights- these are created by a court order e.g judicial
pledge and judicial mortgage
 Function of a real security right
 The first function – the first preference function. It gives secured creditor the
right of first preference over the property in question.
 This means that if the debtor is unwilling to pay the debt, then the secured
creditor can, after the property ha been sold in execution, that creditor can
claim the proceeddings from that sale before any other creditor.
 If all the creditors have real security over the property then the first created
real security right will take precedence.
 This deviation from the principle all creditors must be treated equally.
 The second function is known as the SIGNAL FUNCTION- it helps the
creditor to identify those who are credit worthy and those who are not.
 You check the debtors preparedness to put up the available assets as security.

19 | P a g e
  If the debtors is willing to put up available assets as security then that gives
signal to a creditor that this debtor is credit worthy.
 The Hostage Function - it forces the debtor to prioritse his or her obligation
to the creditor, it serves as a threat of loss of the asset so that the debtor can
repay the debt. The debtor is being held hostage by his assets, he knows or his
threatened by the fact that if he doesn’t pay he will lose his assets.
 The preservation function- it gives the creditor the power to prevent the debtor
from disposing the assets that are subject to real security.
 In special mortgage , the real security must register against the title deed, it
will prevent the debtor from selling that immovable asseta because both
parties that are in the title deed they have to be present when the sell takes
place. Interms of a pledge, that movable asset is in the physical control of the
creditor, this means that before the debtor can sell that asset, he must collect it
from the creditor. The creditor will not give the debtor the assets because once
assets are sold the real security will be terminated. This function ensures that
the creditors rights and interests are preserved
 Characteristics of a real security rights that are in common with other limited
real rights
 The first common feature is that they are limited real rights in respect of
property of another person.
 The second feature is that they confer limited and specific entitlements on
their holder.
 The third one is that they are enforceable against the third party.
 the characteristics that distinguish a real security from servitude.
 The first one is that your real security are accessory in nature.
 This is based on the fact that the creation and the continued existence of the
real security, it depends on the underlying principle debt. You cannot have a
real security right if there is no principle debt.
 If the principle debt is extinguished then automatically the real security is
terminated. (CASE LAW – KILBURN V ESTATE KILBURN) in this court
they held that the existence of a real security is dependent on a underlying
principle debt.

20 | P a g e