Servitude, panhandle, way of necessity, give-and-take line – if you are buying a smallholding where any of these might be a possibility or you are subdividing your property, you need to be very clear about what you are letting yourself in for. Preserve your rights by registering them in the title deeds of the property.
It sometimes happens that property owners are unable to reach their own land from a public road without driving over the land of another person. This is what we mean by the term “landlocked”. In such a case, the landlocked owner will have the right to drive over someone else’s land to reach their own land.
The landlocked owner might have acquired a right to traverse another’s land in order to reach the landlocked property when he purchased the landlocked land. This right would most commonly have been registered as a servitude in favour of the landlocked land.
The landlocked owner might have negotiated with the surrounding land owners in order to arrange for a right of way servitude to be registered over someone else’s land. This allows the landlocked owner to reach his or her property from a public road.
What is a servitude?
A servitude is a registered right that a person has over the immovable property of another. In the case of smallholdings, the most common form is the right of way to travel over a section of the other person’s property in order to reach your own property. However, rural servitudes might also refer to the right to graze animals on someone else’s land or the right of access to water on a neighbouring plot.
Where a landlocked owner does not or cannot acquire a right of way over another’s land by agreement or prescription, he will automatically have a “right of way of necessity” over another’s land in terms of common law. This arises by operation of law and the owner of the affected land does not need to consent.
His right to traverse his neighbour’s land to reach his own is limited to the shortest route between the landlocked property and the nearest public road. Itis also the route that causes the least damage or inconvenience to the land that is burdened by this route.
A panhandle is a narrow alleyway as part of a stand, which provides access from the street to that stand which is not directly adjacent to the street. Our photograph demonstrates two properties that are situated behind two other plots. These residents use panhandles to reach their smallholdings. Specific minimum measurements apply depending on how many erven are served by the access, ranging from 3m to a maximum of 8m. In the event of access being given to multiple stands, a servitude for access must be registered over the servient stand.
Make sure your servitude is registered
If you are subdividing land or are purchasing a subdivision where your property is the ‘back’ property, it would be prudent to ensure that there is a registered servitude over the front property. This prevents questions later as to whether your access will be cut off or changed. Verbal agreements often lead to problems, so avoid them. Where there are two or more owners using a servitude, such as a panhandle or ‘way of necessity’, it is particularly important that the rights of all parties are clearly registered and understood.
A smallholder who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity. However, the resident cannot claim this in order to shorten the distance to the road, nor can the dominant owner insist on being granted the shortest or easiest route across the servient property.
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Featured image: Google Earth