Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA)

Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA)

Issue: Whether a clause in a notarial deed that creates a reciprocal obligation between two neighboring properties is a servitude.

Facts:

Land and Agricultural Bank of Southern Africa (the Bank) and Parker and Others (the Parkers) were the owners of two neighboring properties. The notarial deed that created the Parkers' property contained a clause that stated that the Parkers would not be allowed to develop their property in a way that would interfere with the Bank's enjoyment of its property. The clause also stated that the Parkers would be required to contribute to the cost of maintaining the road that separated the two properties.

The Bank argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor. The Parkers argued that the clause did not create any servitudes.

Key Facts:

• The Bank and the Parkers were the owners of two neighboring properties.
• The notarial deed that created the Parkers' property contained a clause that stated that the Parkers would not be allowed to develop their property in a way that would interfere with the Bank's enjoyment of its property and that the Parkers would be required to contribute to the cost of maintaining the road that separated the two properties.
• The Bank argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor.
• The Parkers argued that the clause did not create any servitudes.

Court's Decision

The Supreme Court of Appeal (SCA) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in the Bank's favor. The SCA reasoned that the clause created a real right in the Bank's favor that was attached to its property and that was enforceable against the Parkers' property.

The SCA also held that the clause met all of the requirements of a servitude. The SCA held that the clause was a reciprocal obligation between two neighboring properties, that it was for the benefit of the dominant tenement (the Bank's property), and that it was a burden on the servient tenement (the Parkers' property).

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in the Bank's favor. The SCA ordered the Parkers to comply with the terms of the servitudes.

Conclusion

The SCA's decision in Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA) is a significant case because it clarifies the law relating to the creation of servitudes. The decision emphasizes that a servitude can be created by any agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider when determining whether a clause in a notarial deed creates a servitude.