By Sanette Viljoen
When a person has the ownership, or dominium, of a thing, he may, as a point of departure, do with it whatever he likes. This right, however, may be limited if another person obtains a real right over the said property. For the purposes of the law of things a distinction is made between personal rights and real rights.
A personal right is binding on the person. The property is therefore not bound by it, for instance where you and your neighbour agree that you may swim in his pool. The agreement obtains only between you and the neighbour and lapses when he dies. When your neighbour sells his house you cannot automatically continue swimming in the pool; the agreement was only between persons and did not include the property.
A real right binds the property. It is therefore enforceable on the owner of the land as well as his successors in title. Real rights are divided in real servitudes and personal servitudes. These two types of servitude are explained as follows:
- A real servitude is a restrictive real right through which a person in his capacity as owner of the property has the power of use or enjoyment over the relevant stand.
- Personal servitudes is where the holder of a servitude in his personal capacity obtains real rights over the property. This is created in favour of a specific person, e.g. lifelong usufruct or right of occupation.
This article therefore deals with personal servitudes. The three most common forms of personal servitudes are usufructus, usus and habitation or, as they are commonly known, usufruct, right of use and right of occupation.
A personal servitude, viz. an occupational right, can cause a lot of frustration for impatient heirs who want to use their inheritance.
The differences between these types of rights are very technical, but this is important as the type of right determines exactly what the person may do with the right:
- Usufruct gives you the right to use another person’s thing as well as its fruits or proceeds. The person may, for instance, use the house and he may also take its rent, or you have the usufruct of an orange farm and you may therefore live there and also sell the oranges.
- A person who only has right of use, is not entitled to the fruits or proceeds. He may therefore not sell, donate or lease the fruits of the property.
- The right to occupation gives the entitled person the right to occupy the property, but it also includes the right to lease the portion where he may live. The drawback of such a right to occupy is that the entitled person may not use the proceeds of the thing but may only lease the portion to which he himself is entitled. For example, you have the right to occupy on an orange farm, and therefore you may occupy the house and also lease the house, but you may not sell the oranges of the farm.
If one looks at an apartment there is very little difference between usufruct and the right to occupation because the only fruits of this real right is the rent and therefore the two rights will be the rent and therefore the two rights in this regard are basically the same.
Real rights come about when they are registered at the deeds office. A real right is therefore not valid unless it is registered at the deeds office.
Therefore, use the right terms if you want to give somebody a personal servitude over your property. Decide what type of right will be best for your situation.