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There is a way to keep the view

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When you purchase a house with a view, you may be forgiven for thinking that you will be enjoying this view for the rest of your life. And then you receive a flyer with a picturesque multi-storey building, to be erected right next to your house and it’s guaranteed to block your view! This could result in heated disputes that may leave you wishing you had secured your view.  

Right to the view 

Just because your property has an unrestricted view, does not mean that the view is yours to keep. To secure it, a registration of a notarial servitude in the Deeds Office is necessary. And for this, you would need the consent of the owner of the adjacent land (your neighbour). A servitude of view (prospectus) secures you the right to an open view and restricts the rights of the owner of the servient tenement (your neighbour) to impede the view by buildings or trees or both.  
 

The notarial servitude 

A praedial servitude (e.g. a servitude of view) is created by a notarial deed executed by the owners of the dominant and servient properties and is attested to by a notary public. The servitude may be permanent (in perpetuity) or for a limited period.  

To secure a valid servitude, it must be registered against the title deed of the servient tenement. It may also be, and usually is, registered against the title deed of the dominant tenement and the terms and conditions of this servitude of view must be clear and unambiguous. 

In other words, when drafting the terms and conditions of the servitude, the notary must have precise and detailed instruction of how, when and under what circumstances the view of the dominant owner may not be impeded or obstructed.  
 

The Court’s considerations 

In the unfortunate event that the matter should go to Court, the Court should not be concerned about any ambiguity or incompleteness of the terms or of any of the surrounding circumstances. 

Before reaching a decision, the Court will consider the terms and conditions of the servitude. The Court will try, as far as possible, to alleviate burdens on the servient property owner. Emphasis will be placed on views and the purpose of the servitude as to provide unobstructed views as they existed at the time of the creation of the servitude.  

Prevention is better than cure 

A new property owner (the servient owner) will have to consider the type of building he intends to erect so that it would not breach any of the terms and conditions of the servitude of view. 

The prudent prospective owner or developer will first consult his attorney to do a Deeds Office search to determine if there are any onerous conditions registered against the property such as a servitude of view. No doubt, this will affect the value of the property to be purchased. 

Of course, the prospective buyer can also approach the dominant owner and negotiate a relaxation or even a cancellation of the servitude if they can agree to this. 

 

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Author: 3%.Com Properties

Submitted 25 Oct 18 / Views 356