QUESTION 2:
A is the owner of farm A and B is the owner of the neighbouring farm B. Farm B is situated in between farm A and a mountain range. There is a narrow and winding road from the homestead on farm B over the lower part of the mountains to the national road. The road over farm A is a broad, straight road with quick access to the national road. B have an agreement with A that he may use the road over farm A. According to South African Property Law. Reference your answers.
(a) What type of a right does B have in terms of the use of the road? (1)
(b) A and B agree that they would like to make the situation more permanent and allow future owners the right to drive over the property as well. What type of a right does this agreement envision and how would this agreement be formalised to ensure the use of the road by future owners Motivate your answer. (2)
(c) Assume there is no agreement between A and B about the use of the road. Due to a severe storm the road over farm B becomes inaccessible. B wants to use the road over farm A but A refuses. Explain what procedure B must follow if he wants to acquire a way of necessity over farm A. In your answer you should distinguish between a ius viae precario and a ius viae plenum.
(a) B has an easement right in terms of the use of the road. An easement is a right to use someone else's property for a specific purpose, in this case, the right to use the road over farm A to access the national road.
(b) The agreement between A and B to allow future owners the right to use the road would envision a servitude right. A servitude is a more permanent right that attaches to the property itself and allows the owner and future owners to use the road. To formalize this agreement, A and B can register a notarial agreement or servitude in the Deeds Office to ensure that the use of the road by future owners is legally recognized and binding.
(c) If there is no agreement between A and B about the use of the road and B wants to acquire a way of necessity over farm A, B must follow the procedure of proving the existence of a right of way through a court application. B would need to show that he has no other reasonable alternative route to access the national road and that his access to his property is being unreasonably restricted by A's refusal.
If B can prove these elements, he may be granted a ius viae precario, which is a limited right of way granted by the court on a temporary and revocable basis. This means that B would only have the right to use the road until the access to his property is restored.
On the other hand, if B can prove that his access to the national road is essential for the reasonable use and enjoyment of his property and that denying him access would cause significant hardship, he may be granted a ius viae plenum. This is a more permanent right of way that cannot be easily revoked and would grant B the right to use the road over farm A indefinitely.