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 Law of Property.
(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 a right of way over the road on farm A.
(b) The agreement envisions an easement right that would allow future owners of farm B to use the road on farm A. To formalize this agreement, A and B should draft a written easement agreement and register it with the relevant authority, such as the Deeds Office, to ensure that it is legally binding and enforceable. This will provide clarity and legal protection for both parties and future owners.
(c) If there is no agreement between A and B, and B wants to acquire a way of necessity over farm A, he would need to follow the procedure for acquiring a way of necessity through legal action. B would need to prove that there is an absolute necessity for his access to the road on farm A, and that there are no other reasonable alternatives available.
If B can prove these requirements, he can acquire a ius viae precario, which is a temporary right of way granted by the court until a permanent solution can be established. This temporary right requires B to compensate A for any damages or inconvenience caused by his use of the road.
If B can prove that the necessity is ongoing and permanent, he can acquire a ius viae plenum, which is a permanent right of way granted by the court. This permanent right would require B to compensate A for the value of the land used for the road, as well as any damages or inconvenience caused by his use of the road.