Written for Property Poser

This week the Property Poser experts address a reader’s concern about preventing pedestrians from crossing her vacant seafront plot.

The reader explains that she bought the land a decade ago and initially intended to build on it but has since decided to sell.

The problem she faces is that the local residents, mostly fishermen, use a pathway across her land to access the beach, even though there is a public road a short distance away.

The reader has checked the title deed and no servitude exists. Her land is unfenced and she has no intention of erecting one as she believes it would look unsightly and that it would soon be damaged in order to gain renewed access to the pathway.

The reader’s concern is that a right, claimed by the local authority and residents, may be created by means of prescription if she continues to allow the public to use the path. This, in turn, might affect the planned sale.

According to Rian du Toit from DTS Attorneys in Port Elizabeth, Section Six of the Prescription Act provides that “a person shall acquire a servitude by presumption if he has openly, and as though he was entitled to, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise for an uninterrupted period of 30 years”.
It therefore certainly appears that, over time, such a right may be constituted, says Du Toit.

“The change in ownership of the land will not interrupt the running of prescription, as long as the public continues using the property openly, and this may realistically present a problem for future owners.”

Du Toit says the Act does, however, make provision for certain instances in which prescription is interrupted and the passing of time needed to complete the acquisition of the right stops.

Despite the reader’s aversion to a fence, a cost-effective option would be to enforce the right of ownership by preventing access in a practical manner, says Charlotte Vermaak from Chas Everitt in PE.
“This could be as easy as erecting a signboard indicating the private nature of the property or, preferably, the aforementioned fence or other mechanism designed to prevent thoroughfare.”

Another alternative is for the owner of the land in question to start legal proceedings, such as obtaining a declaratory order confirming that no right of way exists, says Vermaak.

“This would be done by way of an application to the High Court. It would of course involve legal costs, but may be important for anyone who is planning long-term ownership of the land.”

Vermaak says, under the Act, these measures may well curb the building of a communal right of way.

“But the reader must take some kind of action because to continue to overlook the occurrence may become problematic for her or the next owner.”

To ask a property related question, click here.