Resnekov v Cohen 2012 (1) SA 314 (WCC)

Resnekov v Cohen 2012 (1) SA 314 (WCC)

Issue: Whether a servitude of right of way can be created by agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

Facts:

Resnekov and Cohen were the owners of two neighboring properties. Resnekov and Cohen agreed that Cohen would have a right of way over Resnekov's property. The agreement between Resnekov and Cohen was not registered in the Deeds Office.

Cohen used the right of way for many years. However, Resnekov eventually decided to revoke the right of way. Cohen applied to the Western Cape High Court (WCC) for an order declaring that he had a servitude of right of way over Resnekov's property.

Key Facts:

• Resnekov and Cohen agreed that Cohen would have a right of way over Resnekov's property.
• The agreement between Resnekov and Cohen was not registered in the Deeds Office.
• Cohen used the right of way for many years.
• Resnekov eventually decided to revoke the right of way.
• Cohen applied to the WCC for an order declaring that he had a servitude of right of way over Resnekov's property.

Court's Decision

The WCC held that Cohen had a servitude of right of way over Resnekov's property. The WCC reasoned that a servitude can be created by agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office. The WCC also held that the fact that the agreement was not registered in the Deeds Office did not prevent Cohen from enforcing his servitude against Resnekov.

Application of the Law to the Facts of the Case

The WCC applied the law to the facts of the case and found that Cohen had a servitude of right of way over Resnekov's property. The WCC held that the agreement between Resnekov and Cohen was a valid agreement for the creation of a servitude. The WCC also held that the fact that the agreement was not registered in the Deeds Office did not invalidate the servitude.

Conclusion

The WCC's decision in Resnekov v Cohen 2012 (1) SA 314 (WCC) is a significant case because it clarifies the law relating to the creation of servitudes by agreement. The decision emphasizes that a servitude can be created by 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 lawyers on the steps they can take to protect their interests and the interests of their neighbors. Landowners should be aware that they may be bound by agreements that they enter into with their neighbors, even if the agreements are not registered in the Deeds Office.