Ancillary rights in servitude law

[摘要] ENGLISH ABSTRACT :Servitudes are regulated in South African law by the principles of the common law. One set of principles regulate servitudes ex ante – limiting and controlling the establishment of servitudes. Another set of principles regulate the continued relationship between the parties. They include the principle that a servitude, once granted, includes all that is necessary for the effective exercise of the servitude by the dominant proprietor and the principle that requires reasonable exercise of the servitude rights with due regard for the interests of the servient proprietor. The problem lies in determining the scope of a servitude and establishing whether 'what is necessary for the effective exercise of the rights is a flexible concept, especially when flexible interpretation of servitudes creates tension between the two principles mentioned above. The approach of South African courts is to maintain stability in the system of property law, thus emphasising the principle that servitudes are to be interpreted strictly.A comparative and theoretical overview indicates that a recent shift has taken place in the regulation of servitudes from an ex ante approach focussing on security and stability of property rights, towards a flexible regulation of servitudes by way of ex post controls that allow amendment or termination of obsolete or undesirable burdens on land. This shift is underpinned by the reality of changed circumstances and the need for servitudes, as long-standing property arrangements, to adapt to changes so as to ensure the productive use of land as a resource. With reference to Dutch, Scots, English and Louisiana state law, this dissertation considers ways to incorporate flexibility in servitude law, usually by way of statutory intervention. However, in South African servitude law the possibility of statutory intervention is slim. Accordingly, innovative measures must be developed within the common law framework.The need for flexibility in South African servitude law can be satisfied by development of the common law in the form of ex post application of the existing common law principles. If these principles are applied in a manner that takes account of the current context of the servitude, many of the problems created by the view that servitudes are static and unchangeable can be solved. If properly implemented, this can allow for the amendment of existing entitlements or acknowledgement of new ancillary entitlements, without compromising the security of property rights.

[发布机构] Stellenbosch University