Pettersen v Sorvaag 1955 (3) SA 624 (A)

Pettersen v Sorvaag 1955 (3) SA 624 (A)

Issue: Whether a person can acquire title to land by prescription (adverse possession) if the land is subject to a registered servitude.

Facts:

Pettersen and Sorvaag owned neighboring properties in South Africa. Pettersen's property was subject to a registered servitude in favor of Sorvaag's property. The servitude granted Sorvaag the right to use a road on Pettersen's property.

Pettersen obstructed the road, and Sorvaag brought an action against him to enforce his servitude rights. Pettersen argued that he had acquired title to the land subject to the servitude by prescription.

Key Facts:

• Pettersen and Sorvaag owned neighboring properties in South Africa.
• Pettersen's property was subject to a registered servitude in favor of Sorvaag's property.
• The servitude granted Sorvaag the right to use a road on Pettersen's property.
• Pettersen obstructed the road, and Sorvaag brought an action against him to enforce his servitude rights.
• Pettersen argued that he had acquired title to the land subject to the servitude by prescription.

Court's Decision:

The Appellate Division of the Supreme Court of South Africa (AD) held that Pettersen had not acquired title to the land subject to the servitude by prescription. The AD reasoned that a person cannot acquire title to land by prescription if the land is subject to a registered servitude.

The AD explained that the purpose of prescription is to protect possessors of property, but that this purpose does not apply to servitudes. Servitudes are registered on the title deed of the property, and they are therefore known to both the owner of the burdened property and the owner of the dominant property.

The AD also explained that it is important to protect the rights of owners of servitudes. If people were able to acquire title to land subject to servitudes by prescription, this would undermine the certainty of property rights and make it difficult for owners of servitudes to enforce their rights.

Application of the Law to the Facts of the Case:

The AD applied the law to the facts of the case and found that Pettersen had not acquired title to the land subject to the servitude by prescription. The AD therefore ordered Pettersen to remove the obstruction from the road.

Conclusion:

The AD's decision in Pettersen v Sorvaag 1955 (3) SA 624 (A) is a significant case because it clarifies the law relating to prescription and servitudes. The decision emphasizes that a person cannot acquire title to land by prescription if the land is subject to a registered servitude.

The decision also provides guidance to landowners and owners of servitudes on their rights and obligations. Landowners should be aware that they cannot lose their land to prescription if it is subject to a registered servitude. Owners of servitudes should be aware that their rights are protected from prescription.