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Modify, extinguish or cancel - I

11 October 2012

Cancellation of a personal servitude
Section 3(1)(o) of the Deeds Registries Act 47 of 1937 (the Act) authorises a registrar to ‘register any servitude, whether personal or praedial, and record the modification or extinction of any registered servitude’, but as regards modification does not prescribe the modus operandi. It must therefore be inferred that, if creation and cancellation of a personal servitude is permitted by the execution of a notarial deed, then modification must also be by this means. A bilateral notarial deed entered into by the owner of the land and the holder of the servitude accompanied by the consents of bondholders, together with the titles to the land and the servitude, and the bonds over the land and the servitude, must be lodged. Cancellation of a personal servitude by the aforegoing means is specifically provided for in section 68(2) of the Act. In the case of cancellation no consent is necessary from the holder of any bond over the land being freed from the burden but, if the servitude itself is mortgaged, the mortgagee thereof must consent (section 68(2)). Moreover, in the case of cancellation of a servitude, as contemplated by section 66 of the Act, a unilateral deed of cancellation by the holder of the servitude is acceptable provided no obligation is placed upon the owner of the land (regulation 61(1) of the Act).

Modification of a negative personal servitude
When it comes to the modification or cancellation of negative personal servitudes, that is, so called restraints or conditions, great care must be exercised. Firstly, if the person who can enforce the condition, that is, the person in whose favour it operates, is not disclosed in the condition, then obviously there is no one who can consent to its modification or removal. Such a condition, whether originally validly imposed or not, became in fact on registration an absolute condition of title and the only recourse left to interested parties is to make such application as may be necessary to the High Court. Such application will almost never be opposed by the registrar, who is content with making an interposition in matters pertaining to land registration and matters ancillary thereto (Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T)). In this case the learned judge also observed that there is a “long line of cases in our courts dealing with the circumstances in which restrictive conditions in title deeds can be deleted or amended … Apart from powers specifically conferred by statutory enactments and subject to any specific deprivations of power by the same source, a Supreme Court can entertain any claim or give any order which at common law it would be entitled so to entertain or give.” In such cases, as also in cases where the beneficiaries are known, but it is impossible for every such beneficiary to enter into a deed, e.g. a servitude in favour of the general public, the court generally issues a rule nisi calling upon all persons affected. Secondly, in terms of Alexander v Johns 1912 AD 431, which judgment has been discussed in various cases such as Norbreck (Pty) Ltd v Rand Townships Registrar 1948 (1) SA 1037 (W), Ex parte Will G Hare (Pty) Ltd 1958 (4) SA 416 (C) and Titty’s Bar & Bottle Store v ABC Garage & others 1974 (4) SA 362 (T) there is a doctrine "that purchasers of lots of ground from a common vendor may be entitled to enforce inter se restrictive conditions contained in their respective titles".

According to the cases there are four requisites the presence or absence of any one of which would aid in the interpretation of any particular case "but in every case it would seem that at least the fourth requisite must be present before it can be held that, as between the common vendor and the purchasers of lots, there has been a contract for the benefit of third parties" (see Titty’s Bar case at 367).

These are the requisites:

  • deprivation of title from a common vendor;
  • that the land for sale was laid out for sale in lots subject to conditions consistent with a general scheme of development;
  • that the restrictions were intended by the common vendor to be, and actually were, for the benefit of all the lots;
  • that the parties before the court, or their predecessors in title, purchased from the common vendor on the understanding that the restrictions were to ensure for the benefit of the other lots included in the general scheme.

Cancellation of a fideicommissum
Regulation 61(2) of the Act provides, inter alia, that a registrar may accept for registration a unilateral notarial deed of cancellation of fideicommissum by the fideicommissary heirs. In view of the decision in Van der Merwe v Registrateur van Aktes NO 1975 (4) SA 636 (T) a registrar could not refuse to accept an underhand waiver of rights.

Allen West
Deeds Training
Pretoria

Read Part II of Modify extinguish or cancel

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