## Facts

- Linvestment CC owned servient land burdened by two registered servitudes that together formed a continuous right of way in favor of Bonnie Patricia Hammersley’s dominant land.
- The servitude routes were precisely depicted on registered diagrams referenced in the relevant deeds.
- Linvestment gave notice of an intended change to an alternative route on its property and offered to pay all costs for surveying, consents, registration amendments, and road construction to provide equivalent access.
- Hammersley refused to consent to the proposed substitution of the registered route.
- Linvestment alleged the existing route caused it undue inconvenience and that the alternative route would not excessively inconvenience the dominant owner.
- The parties agreed, for purposes of the legal determination, that Linvestment’s factual allegations could be treated as correct; the dispute turned solely on whether the law permits unilateral relocation of a defined, registered right of way.

## Issues

1. Whether the owner of a servient tenement may, without the dominant owner’s consent, change the route of a defined and registered servitude of right of way on the basis of inconvenience and a tender to bear all relocation costs.
2. Whether the common law should be developed, through the court’s constitutional power to develop the common law in the interests of justice, to recognize such a unilateral relocation power.

## Decision

- The court held that a servient owner has no unilateral right to change the route of a defined and registered right-of-way servitude.
- The court distinguished authority concerning general (undefined) servitudes from defined servitudes whose location is an integral part of the registered real right.
- The court rejected the request to develop the common law to allow unilateral relocation, citing the importance of certainty in registered real rights and reliance by third parties on the deeds registry.
- The appeal was dismissed, and the order refusing the requested substitution of the servitude route was confirmed.

## Legal Principles

- A servitude is a real right burdening servient land for the benefit of dominant land; when its route is defined and registered, the route is fixed as part of that real right.
- Unilateral relocation by the servient owner is not permitted merely because the existing route is inconvenient and the servient owner offers to fund an alternative providing equivalent access.
- Doctrinal flexibility discussed in relation to general or undefined servitudes does not justify altering a precisely defined, registered route.
- Courts should be cautious in developing the common law in ways that unsettle established property rules and the reliability of land registration systems, especially where third-party reliance is foreseeable.

## Conclusion

The court affirmed that a defined, registered right-of-way servitude cannot be relocated at the servient owner’s sole instance; relocation requires the dominant owner’s consent or a recognized legal basis that respects the stability and publicity of registered real rights.


Linvestment CC v. Hammersley, (S.C.A. S. Afr. 2008)