This week our panel of experts examines the issue of a reader’s right of access to his property via a so-called “panhandle”.
He says the vacant stand adjacent to his property was recently sold and the new owners also have access to their property via the same panhandle.
The reader would like to know whether he could cut back the trees and vegetation along his driveway and erect a wall without the neighbours’ consent.
Charl Crous - Du Toit Strömbeck Attorneys
“It is important to establish what the legal rights and obligations pertaining to a panhandle are,” says Charl Crous from Du Toit Strömbeck Attorneys in Port Elizabeth.
It is typically an example of a servitude or limited real right held by the reader’s property in relation to the adjacent erf, says Crous.
“In other words, a right is established which allows someone – in this instance the reader – to access his property via someone else’s property.
“However, he says, it is also possible that the reader’s property boundaries were registered in such a way as to create a panhandle shape.
If this were the case, the reader would be the legal owner of the panhandle. “There are two main types of servitudes, namely personal and praedial,” says Crous.
“A personal servitude is a limited real right granted to someone in his or her personal capacity. It is not passed on to the person’s successors in title.”
Crous says an example of a personal servitude would be that of a usufruct. “A usufruct is a legal right to use and derive benefit from another person’s property, as long as the property is not damaged.”
A praedial servitude, on the other hand, attaches to a specific property and not its owner, says Crous.
“If the property owner who is entitled to the benefit of a servitude sells that property, the servitude is passed – with the sold property – to the new owner. An example of a praedial servitude would be a right of way over a neighbouring property.”
Charlotte Vermaak from Chas Everitt in PE says that – once such a right has been registered against the title deed of the properties burdened and benefitted by the right – the person who has been granted the benefit of the servitude is entitled to exercise these rights.
Vermaak cautions that a servitude restricts the owner whose property is burdened by it in terms of land use. “The owner cannot do things that will impede or interrupt other people from exercising their limited real right.”
Charlotte Vermaak - Chas Everitt
Thus, Vermaak says, the owner of the property upon which a panhandle driveway is situated could not prevent access to the neighbouring property via that driveway.
“Referring to the reader’s situation, it appears that he is not the owner of the panhandle portion, as he mentions that he only has access to his property via this section,” says Vermaak.
“The reader is simply the user, for the time being, of a limited real right – as are the new owners of the property adjacent to his.”
Vermaak says it is up to the owner of the land to keep it clear of vegetation. The reader will also have to negotiate with the owner as to whether and where he can build a wall.
“Keep in mind that such a wall will become part of the owner’s land and will therefore constitute an improvement on his land – not the reader’s.”
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