Linvestment Cc Hammersley and Another 2008 (3) Sa283
Linvestment CC v Hammersley and Another
Supreme Court of Appeal
Howie P, Mthiyane JA, Heher JA, Combrinck JA, Kgomo AJA
2007. November 21. 2008. February 28.
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This case overturns the established case law by holding that the owner of servient tenement can in fact change the route of a defined servitude without the consent of the dominant owner if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs. It is not clear what implications this would have for undefined servitudes, but the Court’s reasoning would seem to apply equally well in that case.
Facts
Two men own portions of a farm. The one man’s property is subject to a registered and precisely defined right-of-way servitude in favour of the other’s property. The owner of the servient tenement wished to change the route of the defined right of way at his own expense when the original route became inconvenient to him. The owner of the dominant tenement refused to consent to the change on allegedly unreasonable grounds. The servient owner brought the matter before the High Court to grant an order allowing the change. The High Court rejected the claim, so the applicant appeals to the present court.
Legal question
Can the owner of a servient tenement freely change the route of a defined servitude?
Reasoning
As in the court a quo, it is assumed that the appellant’s allegations are true (that is, the first respondent’s refusal to consent is unreasonable, and the appellant is unduly inconvenienced by the present route).
It is acknowledged that the appellant’s claim goes against established law. Typically the servient owner in respect of a precisely defined servitude can change the route only with the dominant owner’s consent.
But comparative jurisprudence reveals that there is a clear trend away from strict adherence to
Supreme Court of Appeal
Howie P, Mthiyane JA, Heher JA, Combrinck JA, Kgomo AJA
2007. November 21. 2008. February 28.
[pic]
This case overturns the established case law by holding that the owner of servient tenement can in fact change the route of a defined servitude without the consent of the dominant owner if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs. It is not clear what implications this would have for undefined servitudes, but the Court’s reasoning would seem to apply equally well in that case.
Facts
Two men own portions of a farm. The one man’s property is subject to a registered and precisely defined right-of-way servitude in favour of the other’s property. The owner of the servient tenement wished to change the route of the defined right of way at his own expense when the original route became inconvenient to him. The owner of the dominant tenement refused to consent to the change on allegedly unreasonable grounds. The servient owner brought the matter before the High Court to grant an order allowing the change. The High Court rejected the claim, so the applicant appeals to the present court.
Legal question
Can the owner of a servient tenement freely change the route of a defined servitude?
Reasoning
As in the court a quo, it is assumed that the appellant’s allegations are true (that is, the first respondent’s refusal to consent is unreasonable, and the appellant is unduly inconvenienced by the present route).
It is acknowledged that the appellant’s claim goes against established law. Typically the servient owner in respect of a precisely defined servitude can change the route only with the dominant owner’s consent.
But comparative jurisprudence reveals that there is a clear trend away from strict adherence to