Durban - A long and bitter spat between eManzimtoti neighbours over a servitude has finally ended after a ruling in the Durban High Court.
[IOL note: According to Wikipedia, a servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property (servient estate) and attached to a superior property (dominant estate) or to some person (personal beneficiary) other than the owner.]
The court was dealing with a case brought by Ricardo Lodetti and Jesamaine Jooste against their neighbours Kristiyan and Sharon Raykov.
In a recent ruling, Judge Themba Sishi ordered the Raykovs to remove the wall and provide two remotes to their neighbours to operate the electronic gate they had erected on the servitude, by May 29.
Lodetti and Jooste bought their property in 2005, and it has two entrances, one of which can be reached only via an extremely steep and long driveway.
The second, which is a registered servitude for their use, is a flat and convenient road that runs along the Raykovs’ property to the main road.
The couple told the court they bought the property because they believed they could use the servitude and would not have to use the steep driveway.
But they had problems from the start with the Raykovs, who told them to stop using the servitude and to stay off their property.
The judgment said there was “constant fighting” which created an “unpleasant living environment”, so they began using the servitude less frequently.
“This was an undesirable situation because the other entrance is steep and difficult to use. However, according to the applicants (Lodetti and Jooste), this seemed a better option than constantly arguing.”
The Raykovs then put up an electronic gate and later built a wall which completely blocked their neighbours’ access to the servitude.
The couple tried to reason with the Raykovs.
They said they were forced to bring the matter to court because they were trying to sell the property, but an estate agent had told them buyers were reluctant to purchase unless they could use the servitude.
The Raykovs argued that they believed the couple had abandoned any right they had to the servitude because they stopped using it.
They also alleged that their neighbours did not know about the servitude when they bought the property and put up hearsay evidence that the estate agency, which sold the property to Lodetti and Jooste, had been unaware of it.
Judge Sishi found it was due to the Raykovs’ conduct that their neighbours seldom used the servitude.
“It is clear that the respondents (the Raykovs) have refused time and again to remove the gate and the wall and advised the applicants to instruct attorneys to deal with the issue.”
He added that they did not give up their right to the servitude, despite not using it.
“The applicants would not have brought this application if the servitude was of no use or benefit to them or that they had abandoned it.”
The court also interdicted the Raykovs from putting up any other obstructions and directed the sheriff to take the necessary steps in terms of the order if they did not comply.
The Raykovs were ordered to pay the costs of the application.
The Mercury