Case Name:
Resnekov v Cohen (1787/11) [2011] ZAWCHC 317 (24 August 2011).

Area of Law:
Property Law: Re: Servitudes – Personal and Praedial.

Brief Facts / Summary:
 
The Applicant and the Respondent own neighbouring properties in Sea Point. The Applicant applies for an urgent interdict aimed at preventing the Respondent from building a second storey onto his house, inevitably blocking the Applicant’s sea view.

The interdict sought was based on a restrictive condition found in the Respondent’s title deeds which state: “….to the following special conditions contained in said Title Deed of Transfer …… imposed for the benefit of A. Kantorowitch (bought the original property in 1926 and again in 1928) and his Successors in Title……”.

The question is whether the restriction constitutes a praedial or a personal servitude.

Held: The judge held that it is trite law that there has to be at least two properties mentioned in a title deed in order for a praedial servitude to come into existence. In this case, there was no mention of a dominant or servient tenement. The restriction is not registered in favour of any particular property.

The judge held further that a personal servitude is inseparably attached to the beneficiary and that it can not be transmitted to his or her heirs, nor can it be alienated: “When he dies, it perishes with him”. It was therefore held to be a personal servitude.

Importance / Value:
One should always be aware of the provisions that are contained in one’s Title Deed/s. If a provision and/or restriction is beyond understanding, the buyer / owner should obtain professional advice as to the meaning of same before purchasing the property.

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