Eden Crescent Share Block Ltd v Olive Marketing CC and Others

Eden Crescent Share Block Ltd owned erf 11496, Durban, while Olive Marketing CC owned the adjoining erf 12424, Durban. Both properties were purchased from Ethekwini Municipality. The deed of sale between Ethekwini and Eden provided that a parking servitude of at least 250 parking spaces would be created over Eden's property in favour of Olive's property. A parking arrangement had been in place for over 60 years through different mechanisms while Ethekwini owned both properties. The servitude was registered on 18 February 1997, after transfer of Eden's property had occurred on 16 April 1996. Eden consistently refused to provide parking to Olive and asserted the servitude was invalid. The high court upheld the validity of the servitude. Eden applied for leave to appeal, while Olive and Ethekwini petitioned for conditional leave to appeal against dismissal of their claims.

• Whether the servitude was invalid on account of vagueness regarding the number and location of parking spaces
• Whether the servitude was a general or specific servitude
• Whether special procedures envisaged by section 8(1)(c) of the Share Blocks Control Act 59 of 1980 and section 4B of the Housing Development Schemes for Retired Persons Act 65 of 1988 were required for validity of the servitude
• Whether the servitude amounted to an alienation requiring special approval

1. Eden Crescent Share Block Ltd's application for leave to appeal dismissed. 2. Eden directed to pay costs of Olive Marketing CC, including costs of two counsel. 3. Olive's application for leave to appeal against paragraph 6 of the high court's order dismissed. 4. Olive directed to pay costs of Ethekwini Municipality, including costs of two counsel. 5. Ethekwini's application for leave to appeal against paragraph 7 of the high court's order dismissed. 6. Ethekwini directed to pay costs of Shepstone & Wylie, including costs of two counsel.

1. A servitude is a general servitude (as opposed to a specific servitude) where the agreement creating it makes no reference to the specific location of the servitude on the servient property and contains no provision for future agreement on location. In such cases, the entire servient tenement is subject to the servitude and the dominant owner may select the specific areas for exercise of the servitude, provided this is done civiliter modo (reasonably, with consideration and least inconvenience to the servient owner). 2. A servitude providing for parking of "at least" a specified number of vehicles is not void for uncertainty - it establishes a minimum obligation with permission to provide more. 3. Where a property owner acquires property subject to a contractual obligation to create a servitude, and that obligation exists continuously (whether as a lease term, personal right, or town planning requirement) from acquisition through to registration of the servitude, the registration does not constitute an "alienation" requiring approval under section 8(1)(c) of the Share Blocks Control Act 59 of 1980 or section 4B of the Housing Development Schemes for Retired Persons Act 65 of 1988. 4. Prior to registration, an agreed servitude exists as a personal right valid between the parties, including a right to cooperation in registration and personal rights identical to the servitude. Upon registration, these personal rights are converted into real rights enforceable against successors in title.

1. The court noted that no survey diagram was required for registration of a general servitude, and the Registrar of Deeds must have been satisfied that he was dealing with a general servitude when registering the servitude without such a diagram. 2. The court observed from a practical perspective that the civiliter modo principle would likely restrict the choice of parking spaces to within the parking garage on the servient property. 3. The court noted that even when the deed of sale was concluded in July 1994, before any shares were sold to retirees, the Share Blocks Control Act and Retired Persons Act would have had no application because Eden had not yet sold shares and was not alienating property but rather acquiring it (subject to the parking obligation). 4. The court referred to the principle that a purchaser with knowledge of an unregistered servitude will be bound not only to give effect to the servitude but also to cooperate in having it registered.

This case clarifies important principles regarding the validity of servitudes in South African property law. It establishes: (1) The distinction between general and specific servitudes, holding that where no specific location is mentioned in the servitude agreement and there is no agreement to agree on location, the servitude is a general one allowing the dominant owner to select the location subject to the civiliter modo principle. (2) That a servitude providing for "at least" a specified number of parking spaces is not void for vagueness. (3) That registration of a servitude pursuant to a pre-existing contractual obligation to create that servitude does not constitute an "alienation" triggering approval requirements under the Share Blocks Control Act or Housing Development Schemes for Retired Persons Act. (4) The principle that where a property owner has never enjoyed ownership free from an obligation (whether arising from lease, personal right, or town planning scheme), subsequent registration of a servitude giving effect to that obligation cannot be characterized as an alienation.