Lorentz v Melle 1978 (3) SA 1044 (T)

Lorentz v Melle 1978 (3) SA 1044 (T)

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

Facts:

Lorentz and Melle were the owners of two neighboring properties. The notarial deed that created Melle's property contained a clause that stated that Melle would not be allowed to develop her property in a way that would interfere with Lorentz's enjoyment of his property. The clause also stated that Melle would be required to contribute to the cost of maintaining the road that separated the two properties.

Lorentz argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in his favor. Melle argued that the clause did not create any servitudes.

Key Facts:

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

Court's Discussion on the Nature of Servitudes

The Transvaal Provincial Division (TPD) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Lorentz's favor. The TPD reasoned that the clause created a real right in Lorentz's favor that was attached to his property and that was enforceable against Melle's property.

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

Application of the Law to the Facts of the Case

The TPD 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 Lorentz's favor. The TPD ordered Melle to comply with the terms of the servitudes.

Conclusion

The TPD's decision in Lorentz v Melle 1978 (3) SA 1044 (T) is a significant case because it clarifies the law relating to the nature 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 in determining whether a clause in a notarial deed creates a servitude.