Kriel v Terblance NO 2002 (6) (SA) 132 (NCD)

Kriel v Terblance NO 2002 (6) (SA) 132 (NCD)

Issue: Whether a trust can acquire a servitude by prescription.

Facts:

Kriel was the owner of a farm. He established a trust and transferred the farm to the trust. Kriel wanted to donate the farm to his grandchildren, but in order to avoid the tax implications thereof, he transferred the farm to the trust.

The farm was subject to a servitude of right of way in favor of Terblance NO, a neighboring landowner. Kriel had been using the right of way for many years, but the trust had not been using the right of way for any significant period of time.

Terblance NO argued that the trust had lost the servitude of right of way by prescription because it had not been used for a continuous and uninterrupted period of time.

Key Facts:

• Kriel was the owner of a farm.
• He established a trust and transferred the farm to the trust.
• Kriel wanted to donate the farm to his grandchildren, but in order to avoid the tax implications thereof, he transferred the farm to the trust.
• The farm was subject to a servitude of right of way in favor of Terblance NO, a neighboring landowner.
• Kriel had been using the right of way for many years, but the trust had not been using the right of way for any significant period of time.
• Terblance NO argued that the trust had lost the servitude of right of way by prescription because it had not been used for a continuous and uninterrupted period of time.

Court's Decision

The Natal Provincial Division (NPD) held that the trust had acquired the servitude of right of way by prescription. The NPD reasoned that the trust was the successor in title to Kriel and that it could therefore benefit from Kriel's use of the servitude.

The NPD also held that the fact that the trust had not been using the servitude for any significant period of time did not prevent it from acquiring the servitude by prescription. The NPD held that the trust's use of the servitude did not need to be continuous and uninterrupted in order for the trust to acquire the servitude by prescription.

Application of the Law to the Facts of the Case

The NPD applied the law to the facts of the case and found that the trust had acquired the servitude of right of way by prescription. The NPD ordered Terblance NO to respect the trust's servitude of right of way.

Conclusion

The NPD's decision in Kriel v Terblance NO 2002 (6) (SA) 132 (NCD) is a significant case because it clarifies the law relating to the acquisition of servitudes by prescription by trusts. The decision emphasizes that a trust can acquire a servitude by prescription, even if the trust has not been using the servitude for any significant period of time.

The decision also provides guidance to trusts and servitude holders on the law relating to the acquisition of servitudes by prescription by trusts. Trusts should be aware that they can acquire servitudes by prescription, even if they have not been using the servitudes for any significant period of time. Servitude holders should be aware that they may lose their servitudes by prescription if the servitudes are not used for a continuous and uninterrupted period of time.