LPL4805
ASSIGNMENT 1
DUE DATE: 26 AUGUST 2026
, LPL4805 ASSIGNMENT 1 2026
DUE 26 AUGUST 2026
Question 1: Unregistered Servitude Agreement
Question: 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 agreement establish an enforceable servitude
agreement? Explain.
No, the unregistered agreement will not establish an enforceable servitude (real right). It
will only create a valid personal right (creditor's right) between Joseph and Peter.
Registration is a Prerequisite for a Servitude: A servitude is a limited real right (ius in
re aliena) over another person's property. For it to be established as a real right that is
enforceable against the whole world, it must be registered in the Deeds Registry.
Notarial Execution Alone is Insufficient: A mere notarial agreement does not create a
servitude. The court in Willoughby's Consolidated Co Ltd v Copthall Stores Ltd
established that such an agreement does not vest the legal title to the servitude in the
beneficiary. The beneficiary only has a right to claim performance (registration) from
the other party.
, The Unregistered Agreement is a Personal Right: aS failing to register the deed, you
have failed to complete the legal process. The agreement between Joseph (grantor)
and Peter (grantee) remains a contract. It grants Peter a personal right against Joseph
to compel him to cooperate with the registration of the servitude. This personal right is
enforceable only between the contracting parties (Joseph and Peter) .
The Doctrine of Notice (Exception): While an unregistered servitude is not a real right, it
can bind third parties under the doctrine of notice. If Joseph were to sell his land (the
servient tenement) to a third party, that third party would only be bound by the
unregistered servitude if they had actual or constructive knowledge of the agreement at
the time they acquired the property (specifically, at the moment of registration of
transfer) .
No Knowledge - No Enforceability: If the third party e.g. a new purchaser has no
knowledge of the unregistered agreement, they take the land free of the obligation. In
such a case, Peter's right is reduced to a personal claim for damages against Joseph
for breach of contract.
Because you erroneously failed to register the agreement, it does not create an
enforceable servitude. It is merely a personal right between Joseph and Peter, which
binds third parties only if they have knowledge of it in terms of the doctrine of notice.
ASSIGNMENT 1
DUE DATE: 26 AUGUST 2026
, LPL4805 ASSIGNMENT 1 2026
DUE 26 AUGUST 2026
Question 1: Unregistered Servitude Agreement
Question: 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 agreement establish an enforceable servitude
agreement? Explain.
No, the unregistered agreement will not establish an enforceable servitude (real right). It
will only create a valid personal right (creditor's right) between Joseph and Peter.
Registration is a Prerequisite for a Servitude: A servitude is a limited real right (ius in
re aliena) over another person's property. For it to be established as a real right that is
enforceable against the whole world, it must be registered in the Deeds Registry.
Notarial Execution Alone is Insufficient: A mere notarial agreement does not create a
servitude. The court in Willoughby's Consolidated Co Ltd v Copthall Stores Ltd
established that such an agreement does not vest the legal title to the servitude in the
beneficiary. The beneficiary only has a right to claim performance (registration) from
the other party.
, The Unregistered Agreement is a Personal Right: aS failing to register the deed, you
have failed to complete the legal process. The agreement between Joseph (grantor)
and Peter (grantee) remains a contract. It grants Peter a personal right against Joseph
to compel him to cooperate with the registration of the servitude. This personal right is
enforceable only between the contracting parties (Joseph and Peter) .
The Doctrine of Notice (Exception): While an unregistered servitude is not a real right, it
can bind third parties under the doctrine of notice. If Joseph were to sell his land (the
servient tenement) to a third party, that third party would only be bound by the
unregistered servitude if they had actual or constructive knowledge of the agreement at
the time they acquired the property (specifically, at the moment of registration of
transfer) .
No Knowledge - No Enforceability: If the third party e.g. a new purchaser has no
knowledge of the unregistered agreement, they take the land free of the obligation. In
such a case, Peter's right is reduced to a personal claim for damages against Joseph
for breach of contract.
Because you erroneously failed to register the agreement, it does not create an
enforceable servitude. It is merely a personal right between Joseph and Peter, which
binds third parties only if they have knowledge of it in terms of the doctrine of notice.
