1. General Remarks
The practice concerning the qualification of conditions in deeds of transfer and certificates of title as applied in the Pretoria and Johannesburg Deeds Registries originates from a long established practice.
The purpose of this guideline is to confirm the longstanding practice and to elaborate thereon by providing examples. It has become apparent that there is a vast amount of uncertainty among examiners and conveyancers alike when applying the principles for the qualifications of conditions. .
Qualification of conditions is imperative when land is being subdivided or consolidated as it provides legal certainty to holders of real rights as to their rights. .
The purpose for the qualification of conditions in deeds of transfer and certificates of registered title, in terms of section 43 of the Deeds Registries Act No 47 of 1937, (the Act) is to indicate to what extent a subdivision of land (including the remainder), is subject to existing conditions or entitled to existing rights created or imposed on the original land, before subdivision. Likewise to indicate to what extent a component or components of consolidated land is/are subject to existing conditions or entitled to existing rights created or imposed on a smaller land unit which forms part of the consolidated land. .
2. When is qualification of conditions necessary – or unnecessary?
If a servitude or condition is of such a nature that it becomes a separate servitude or condition on the portion of land being transferred (or in respect of which a certificate of registered title in terms of section 43 of The Act is being issued), that is, it becomes a separate servitude/condition in all respects from the main servitude/condition on the remainder of the land to which it was subject at the time of the subdivision, and is capable of being altered, amended or cancelled in respect of such portion, without reference to the remainder, then qualification is unnecessary. .
Simply put, a servitude or condition that becomes co-extensive with or wholly within the boundaries of a subdivision, it in fact divided and becomes for all intents and purposes, a separate servitude/condition for each subdivision and qualification is thus unnecessary. In general it may be said that if a servitude/condition is clear and unambiguous without qualification, then qualification is unnecessary. Where in the absence of a qualification, confusion or misstatement is created, qualification is necessary. .
There may be doubtful or borderline cases where the above mentioned principles cannot be applied satisfactorily. In such cases the servitude or condition should preferably be qualified. Land titles must not contain any ambiguity. .
The application of the above mentioned principles will now be dealt with: .
3. Personal Servitudes
3.1 Transfer of a portion of land or a certificate of registered title issued in respect of a portion of land
In applying the co extensive rule (see paragraph 2 above), no qualification of conditions is necessary where the land being subdivided is subject to the usual personal servitude of usufruct, habitatio or usus. No qualification is similarly necessary if the land being subdivided is subject to a personal servitude with ancillary rights, such as an Eskom power line servitude, where both the subdivision and the remainder remain subject to both the servitude and the ancillary rights, i.e. the power line servitude traverses the subdivision as well as the remainder. .
Qualification is, however, necessary where the subdivision being transferred, for reason of its location, is not subject to the main servitude but only to the ancillary rights which have not been restricted to the remainder. In such a case the co extensive rule will not apply, as the ancillary rights are not separable from the main servitude applicable to the remainder. .
If, for example, a power line servitude with ancillary rights was registered in favour of Eskom on Portion 5 of the farm A and Portion 10 (a portion of portion 5) of the farm, not being directly subject to the power line servitude, is transferred, causing the power line servitude in its entirety to fall on the Remaining Extent of Portion 5 and the ancillary rights to the servitude are not restricted to the remainder, a condition relating to the servitude must still be embodied in the deed of transfer of Portion 10, but must be properly qualified, for example –.
”Portion 5 of the farm A, a portion whereof is hereby transferred, is subject to a power line servitude with ancillary rights in favour of Eskom, as will more fully appear from Deed of Servitude No K………/……S” .
Qualification is also necessary where right of enjoyment over the land being subdivided are numerically or otherwise defined or restricted, e.g. a right of grazing specifying the number of cattle or sheep that may be allowed to graze on the land, or a right to water which is defined in turns, hours cusecs, etc. from a river, dam, spring, furrow, etc. for example –.
“Portion 6 of the farm A, a portion whereof is hereby transferred, is subject to a right of grazing for 200 sheep in favour of the Municipality of Kleinbegin, as will more fully appear from Notarial Deed of Servitude No K……../…..S” .
If a servitude is vaguely defined or described in “general terms” and consequently it is impossible to determine from the registered data whether it affects or does not affect the portion being transferred, qualification is also necessary. .
Above mentioned principles are applied where a certificate of registered title is being issued in terms of section 43 of the Act in respect of subdivision of land. .
3.2 Transfer or Certificate of Registered Title in respect of a share in land
It is not necessary to qualify a personal servitude to indicate that a share of the burdened land is being transferred or that a certificate of registered title is being issued in respect of a share of the burdened land as this is evident from the deed itself. If, however, in rare cases, the servitude was registered against a share only, qualification may be necessary, for example –.
“One half share of the land transferred hereby, is subject to …..”.
4. Township and Holding conditions.
4.1 Transfer of a portion of an erf or holding
4.1.1 Where conditions are all of a general nature, no qualification is necessary. Such conditions may relate to the prohibition on the making of bricks or the keeping of poultry or pigs, etc. on the land. .
Such conditions must, following the decision in Ex parte Fitzpatrick (1962) SA 1 be carried forward unqualified in the titles of any subdivision, including the remainder. .
4.1.2 Where a Local authority unconditionally consents to the subdivision of an erf/holding, the subdivision is unqualified subject to the application township/holding conditions irrespective of the fact that a “one house” condition may be part thereof, unless of course, a contrary intention is clearly evident from the consent to subdivision. In such a case the examiner of deed must add the following words beneath the transfer endorsement of the subdivision on the title deed of the remaining extent of the land – .
“With condition …….. on page ……… applicable to the subdivision” .
That will serve as a caveat that the remainder of the erf may also be transferred with unqualified conditions. The same will obviously apply where a certificate of registered title in terms of section 43 of the Act is being issued. .
4.1.3 If the consent of the Local Authority is subject to any condition regarding the applicability of existing conditions to the subdivision, it must be implemented in the most practical way. .
4.1.4 In dealing with subdivisions of a consolidated erf, the same principles must be applied as in paragraph 4.1.2 above. .
4.1.5 Where conditions requiring qualification are included amongst conditions of a general nature not requiring qualification, it is not the practice to qualify all the conditions. Only those conditions requiring qualification must be qualified in brackets, after such condition only, as follows: .
“(This condition applies to Erf/Holding …….., Portion ….. of which is hereby transferred.)” .
4.2 Transfer (or certificate of registered title in terms of section 43 of the Act) of a share in land
No qualification is necessary (see paragraph 3.2). .
4.3 Conditions imposed by statute
When new conditions, imposed in pursuance of a statute, are enclosed in a deed of transfer or certificate of title, reference to the statute or Authority, must be embodied in the introduction to the condition, for example –.
“Subject to the following condition(s) imposed in terms of section …….. of ……..”
“Subject to the following condition(s) imposed by the Municipality of …….. in terms of section …….. of Act/Ordinance……..”.
Where township conditions are quoted in a deed of transfer or certificate of registered title in respect of the first registration from the township title or any subsequent registration, it will, however, not be necessary to refer to the Proclamation in terms of which the township was approved/proclaimed. .