Practitioners are often confronted with the question as to whether certain conditions must be perpetuated in a new deed of transfer, or merely omitted. What follows are merely a few of the conditions that may be omitted, without further ado.
Any condition relating to mineral rights, as well as conditions ancillary thereto must be omitted (see CRC 2 of 2011). Mineral rights and rights ancillary thereto include inter alia the following:
- Any registered rights to claim licence moneys
- Any Prospecting Contract for minerals
- Any mineral lease
- Any Cession of Mineral Rights
- Any Mynpacht
- Any minerals reserved to the State in terms of any Act
- Any nomination agreement in respect of minerals
- Any Certificate of Minerals Rights etc. (see RC 8 of 2013PTA)
Conditions of a Racial Nature
In terms of section 28 of Act 101 of 1969 any condition having a racial nature must be omitted.
In terms of Section 53 of the Roads Amendment Ordinance 1977 (No 21 of 1977) any reference to an outspan (uitspanning) has lapsed and must be omitted.
Conditions excluding community
Any condition which was created by donation or testamentary, excluding community of property, must be omitted.
Conditions which have lapsed by effluxion of time
Any condition which has lapsed by effluxion of time must be omitted, however, an application has to be brought in terms of section 68(1) of the Deeds Registries Act, 47 of 1937, for the lapsing thereof.
Conditions which have served their time
Should a condition have lapsed by virtue of the fact that it is served its time for example, the dwelling has been erected on the property, or the usufruct has lapsed by death or otherwise, the said conditions must also be omitted, subject once again to an application which has to be brought in terms of section 68(1) of the DRA.
Ordinance of the Transvaal 1904
Any condition relating to the Ordinance of the Transvaal, 1904, must be omitted without any necessity for an application in terms of section 68(1).
Township Establishment Conditions
Without entering into a lengthy legal debate, cognizance must be taken of the fact that conditions created in terms of the relevant Township Ordinances or Acts, are enforceable by all the owners of such township and can only be cancelled in terms of SPLUMA or an order of court, notwithstanding the fact that the township developer who was the imposer of such condition has been finally deregistered, in the case of a company.
Home Owner Association Conditions
Any condition in favour of a Home Owners Association, albeit created as a non-profit company or otherwise, can only be cancelled by order of court or SPLUMA, irrespective as to whether such Association is defunct, finally deregistered etc. (RCR4 of 2018).
Pre-emptive and Revisionary Right Conditions
Where a pre-emptive right or reversionary right condition has not been exercised or has lapsed in terms of prescription or otherwise, the condition must be omitted from the deed of transfer, however, the provisions of section 68(1) must be invoked to note the lapsing thereof against the title deed of the land in question.
Conditions which lapse by Merger
Where a condition albeit a personal or praedial servitude by merger the condition may not be omitted from the new deed of transfers, but must be perpetuated as same only lapses on registration. The Registrar of Deeds must be requested to place a factual endorsement on the titles, to confirm that the relevant condition has lapsed by merger.
The above conditions are by no means exhaustive and merely serve as a guideline to practitioners when preparing deeds of transfer.
For any further information do not hesitate to contact us.
Tonkin Clacey Pretoria
(012) 346 1278