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We have in previous articles outlined on what is meant by real rights in and over property. As a refresher, we previously defined rights as rights that are attached to a thing as opposed to a person, meaning that the holder of such rights is entitled to enforce the same for him/herself against the world.
Servitudes in Zimbabwe are legal restrictions that grant a third party the right to use a portion of another person’s land for a specific purpose without actually owning it. These can exist above, on, or below the surface and are typically put in place for infrastructure, utilities, access rights, or conservation purposes.
Different types of servitudes are recognised in Zimbabwe; for instance, there are utility servitudes which permit electricity cables or water pipes to run through a property. The right to have electricity cables run through another person’s property will ordinarily belong to the electricity generating company or in the event of water pipes, the company supplying water to residents in a particular catchment
It is also common to have road servitudes whose purpose is to permit either the public, or specific individuals to use a particular piece of land for road related purposes with an endeavour to access public or private roads.
In other instances, road servitudes can be granted to a third party for the purposes of accessing their property by way of a shared driveway.
It is also common to come across conservation servitudes which are typically covenants that limit certain uses of a property in order to protect the land’s natural, scenic or historic values. Such servitudes can typically be found at wildlife sanctuaries, botanical or national heritage sites.
Depending on the type of servitude existing in and over a particular property, one of the challenges that can be experienced by the owners of the property could be a decrease in the market value of the property. This is as a result of a lower demand emanating from the existence of the servitude in question.
Further, the consequences of carrying out improvements or building over an area encumbered with a servitude can result in legal disputes, which can be protracted and costly with demolition orders and financial penalties being issued.
Where a land owner wishes to sell property encumbered with a servitude, they are
legally obliged to disclose the existence of the servitude to any interested purchasers
because to omit from doing so could again result in lengthy and costly litigation/outcomes.
Information pertaining to the existence of servitudes in and over properties can be obtained from scrutinising title deeds, the Surveyor General diagram or municipal or utility records.
As a result of the importance in establishing whether or not servitudes exist, it is advisable to seek professional advice to ascertain the nature and/or extent of any encumbrances that may be attached to any given property.
Ordinarily a property lawyer, town planner, or surveyor would be imperative to establish the existence or lack thereof of any servitudes.
