Personal servitudes: usufruct, use and habitation

Personal servitudes are established in favour of particular persons over things and may confer a variety of benefits on their holders. Although they are real rights; they cannot be transferred‘) they may be constituted for a fixed term of years or be granted until the happening of a future event or for the lifetime of the beneficiary, but not beyond his or her death. If the usufructory is a legal person the usufruct is terminated upon dissolution of the legal person or the lapse of 100 years. There are three personal servitudes par excellence which require further discussion: usufruct (ususfructus), use (usus) and habitation (habitatio). Usufruct A usufruct may be defined as a real right in terms of which the owner of a thing (often referred to as the grantor) confers on the “usufructuary” the right to use and enjoy the thing to which the usufruct relates. The thing may be movable or immovable, whether corporeal or incorporeal. A usufruct may be constituted over a collection of things such as a herd of cattle or flock of sheep and even over the entire estate of the grantor. It furthermore extends to the accessories of the thing that is subject thereto. A usufruct over a farm, for example, will normally extend not only to all buildings but presumably also to the livestock, farming equipment and the furniture in the homestead, provided of course a contrary intention does not appear from the will or agreement inter vivos, as the case may be. As the usufructuary is only entitled to the use and enjoyment of the property he or she does not acquire the ownership over it, though he or she is of course entitled to its possession.

The usufructuary has no entitlement to consume and destroy the thing (ius abutendi) and is obliged to preserve its substance." But he or she has the right to take, consume or alienate its fruits, whether they are natural, industrial or civil. The obligation to preserve the substance of the property means that the usufructuary is bound to maintain it and to defray the costs of all current repairs necessary to keep it in good order and condition, fair wear and tear only excepted, and all rates and taxes. On the other hand, he or she is not responsible for the payment of insurance premiums, nor (probably) for the cost of capital expenditure such as structural reinforcements necessary to prevent a building from being condemned as being unfit for human habitation. If the usufructuary makes improvements to the property he or she is not entitled to compensation, though he or she may remove them provided he makes good any damage which their removal may cause. A usufructuary may be required to prepare an inventory when he or she takes possession of the property in question and give security for the due fulfilment of his or her obligations.

As the usufructuary is not the owner of the property that is the subject matter of his or her right, he or she cannot alienate or encumber it. Nor may he or she alienate the real right of usufruct as a personal servitude is inseparably linked to its holder. However, he or she may deal with his or her interest in the property so that he or she may encumber the right of usufruct” or even dispose of his the right to the use and enjoyment of the property and its fruits whether by sale, lease, loan or leave to hold at pleasure, provided that such arrangement does not exceed the period in respect of which the usufruct has been granted.” A person who acquires a usufruct by an act inter vivos if he or she is expressly exempted from giving security; a mother who has the usufruct over property owned by her children if she is exempted by will. See also Van der Westhuizen 12 Van Aardts Estate supra 309. As a general rule a usufructuary cannot be exempted by will from giving security as this requirement was introduced for the benefit of the heir or legatee who acquires ownership and not for the benefit of the testator. As to the practical problem of a beneficiary who cannot afford to provide security, see Wright 1995 THRHR 86. In terms of s 69(3) of the Deeds Registries Act 47 of 1937 the owner of land subject to a personal servitude and the holder of that servitude may together mortgage the land to the full extent of their respective rights. S 69(4) provides that either of them may as principal debtor mortgage the land or the servitude respectively and the other may in the same bond mortgage the servitude or the land as surety.

There is no indication that s 69 is intended to be exhaustive. If this is correct, there should be no objection to the burdening of the usufructuary interest without the co-operation of the owner. Use A servitude of use resembles a usufruct, but the holder’s rights are far more restricted. He or she may possess and use the thing to which the right relates if it is a movable and occupy it together with his or her family and visitors if it relates to land. The holder may take the fruits of the thing for his or her daily needs as well as for the daily needs of his or her household, but nothing in excess of that.‘ The holder cannot sell any fruits. Nor may he or she grant a lease in respect of a building, though this rule is subject to a number of exceptions. His or her use must be without detriment to the substance of the property and he or she may be required to give security for the due fulfilment of his or her obligations. Certain types of fruit are, however, excluded, eg the wool of sheep and the young of animals in contradistinction to eg milk, vegetables, flowers and wood.

Habitation The servitude of habitation confers on its holder the right to dwell in the house of another together with his or her family without detriment to the substance of the property. Unlike a servitude of use, it carries with it the right to grant a lease or sublease to others. Interpretation While the three servitudes of usufruct, use and habitation are generally regarded as personal servitudes par excellence, it must nevertheless always be remembered that personal servitudes may confer a vast variety of other entitlements and benefits on their holders, and, in particular, that most “praedial servitudes” may also be constituted as personal servitudes] As a general rule, the draftsperson will make it clear whether a particular servitude is praedial or personal. But he or she may not always succeed with the result that on the face of it the wording is neutral and capable of being construed as constituting either a personal or a praedial servitude. The court must then endeavour to ascertain the intention of the parties from the surrounding circumstances.

But it is said that in cases of this kind a presumption operates in favour of the condition being a personal rather than a praedial servitude. The presumption is based on the general principle that inasmuch as a praedial servitude places a burden upon property and is opposed to natural liberty, in cases of doubt freedom from servitude must be presumed and, where a servitude has been created, it is restrictively interpreted. Where it is doubtful whether a servitutal burden placed on land was intended to be for the benefit of another property and therefore praedial and perpetual, or for the benefit of particular person and therefore personal and limited in its duration, the latter interpretation must be adopted as being the one which places the lesser burden upon the subject matter of the servitude? The existence of this general principle must be accepted. The difficulty lies, however, in its application and it does not seem safe to resolve every doubt by reference to the presumption which it prima facie creates. Deeds Registries Act 47 of 1937 s 65(1). Lapsing of personal servitudes Section 68(1) of the Deeds Registries Act makes provision for the registration of the lapsing of a personal servitude}

The registrar is obliged to note such a lapse on written application by or on behalf of the owner of the encumbered land accompanied by proof of such lapse, the title deed of the land, if available and the title deed of the servitude, if any. Under section 68(2) of the Deeds Registries Act the servitude can be cancelled in pursuance of a bilateral agreement between the owner of the land and the holder of the servitude. In United Building Society Ltd No 12 Du Plessis 1990 3 SA '75 (W) it was decided that a mortgage bond that is preferent to a usufruct, should enjoy preference upon a sale of execution of the land, or upon a sale in insolvency, if the best offer would fail to satisfy the claim of the mortgage debt. In such an instance the usufruct would lapse. The section, however, does not prescribe that the holder of the servitude has to be notified of such lapse. Amendment of s 68(1) was thus recommended.