Book Review: The Law of Servitudes by A.J. van der Walt

Jan 23, 2017 | 2017, Book Review, News

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 anti-fragmentation 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 servitudes.

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.