UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law
⋄
Assignment 1
Semester 2 — 2026
⋄
Module Code: LPL4805
Module Name: Law of Property
Assignment No.: Assignment 1
Due Date: 26 August 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for Law of Property
at the University of South Africa.
, UNISA | LPL4805 Servitudes and Trust Property
Question 1: The Unregistered Servitude Agreement
Joseph and Peter appeared before you, a notary, to execute and register a servitude
agreement. Due to your large volume of work, you erroneously forgot to register the
servitude agreement at the Registrar of Deeds office. Will the unregistered agree-
ment establish an enforceable servitude agreement? Explain.
A servitude is a limited real right that entitles the holder to exercise a specified use over the
property of another, or to prevent the owner of that property from exercising one or more
of the entitlements that ordinarily flow from ownership.1 Under South African law, however,
a servitude only exists as a real right once two distinct requirements have been satisfied:
a valid underlying agreement (the causa) between the parties, and the registration of that
agreement against the title deed of the servient property in the Deeds Registry.2 The facts
raise precisely the situation where the first requirement has been met but the second has not.
1.1 The Personal Right Created by the Agreement
Joseph and Peter appeared before the notary and executed the servitude agreement. Execu-
tion before a notary satisfies the formal requirement that a servitude agreement be reduced
to writing and notarially executed.3 That execution, however, does not by itself confer a real
right on either party. The Appellate Division confirmed this position in Registrar of Deeds
(Transvaal) v The Ferreira Deep Ltd, holding that an agreement to create a servitude gives rise
only to a personal right until it is registered, at which point the personal right is converted
into a real right binding on the whole world.4 The distinction is not a formality: a personal
right binds only the party against whom it was created and is enforceable by an action for
performance, whereas a real right attaches to the property itself and binds successors in title,
mortgagees and every other person who subsequently deals with the land.5
On these facts, the agreement between Joseph and Peter is valid as a contract. Peter, as-
suming he is the party in whose favour the servitude was granted, has a personal right to
demand that Joseph, as the owner of the servient property, do what is necessary to procure
registration, and in the interim to tolerate the exercise of the servitude as agreed. Joseph, as
1
AJ van der Walt and GJ Pienaar, Introduction to the Law of Property (7th edn, Juta 2016) 297.
2
Deeds Registries Act 47 of 1937, s 63(1).
3
Deeds Registries Act 47 of 1937, s 65.
4
Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169, 180.
5
Van der Walt and Pienaar (n 1) 89–91.
Page 1 of 9
College of Law
⋄
Assignment 1
Semester 2 — 2026
⋄
Module Code: LPL4805
Module Name: Law of Property
Assignment No.: Assignment 1
Due Date: 26 August 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for Law of Property
at the University of South Africa.
, UNISA | LPL4805 Servitudes and Trust Property
Question 1: The Unregistered Servitude Agreement
Joseph and Peter appeared before you, a notary, to execute and register a servitude
agreement. Due to your large volume of work, you erroneously forgot to register the
servitude agreement at the Registrar of Deeds office. Will the unregistered agree-
ment establish an enforceable servitude agreement? Explain.
A servitude is a limited real right that entitles the holder to exercise a specified use over the
property of another, or to prevent the owner of that property from exercising one or more
of the entitlements that ordinarily flow from ownership.1 Under South African law, however,
a servitude only exists as a real right once two distinct requirements have been satisfied:
a valid underlying agreement (the causa) between the parties, and the registration of that
agreement against the title deed of the servient property in the Deeds Registry.2 The facts
raise precisely the situation where the first requirement has been met but the second has not.
1.1 The Personal Right Created by the Agreement
Joseph and Peter appeared before the notary and executed the servitude agreement. Execu-
tion before a notary satisfies the formal requirement that a servitude agreement be reduced
to writing and notarially executed.3 That execution, however, does not by itself confer a real
right on either party. The Appellate Division confirmed this position in Registrar of Deeds
(Transvaal) v The Ferreira Deep Ltd, holding that an agreement to create a servitude gives rise
only to a personal right until it is registered, at which point the personal right is converted
into a real right binding on the whole world.4 The distinction is not a formality: a personal
right binds only the party against whom it was created and is enforceable by an action for
performance, whereas a real right attaches to the property itself and binds successors in title,
mortgagees and every other person who subsequently deals with the land.5
On these facts, the agreement between Joseph and Peter is valid as a contract. Peter, as-
suming he is the party in whose favour the servitude was granted, has a personal right to
demand that Joseph, as the owner of the servient property, do what is necessary to procure
registration, and in the interim to tolerate the exercise of the servitude as agreed. Joseph, as
1
AJ van der Walt and GJ Pienaar, Introduction to the Law of Property (7th edn, Juta 2016) 297.
2
Deeds Registries Act 47 of 1937, s 63(1).
3
Deeds Registries Act 47 of 1937, s 65.
4
Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169, 180.
5
Van der Walt and Pienaar (n 1) 89–91.
Page 1 of 9
