Regulation 73 of the Deeds Registries Act, 47 of 1937 provides the procedure for the identification of servitudes on registration thereof. Unless a servitude is clearly identified, such a servitude will be voidable due to vagueness, could lead to disputes and should not be registerable in a deeds registry.
Identification can be divided into the following categories, each of which will now be looked at more closely.
When registering a servitude, albeit personal or praedial, such a servitude may be depicted on a servitude diagram, unless the servitude is in respect of the whole of a defined portion of the land, in which case the land diagram will also serve as the diagram to identify the servitude. The servitude diagram will be attached to the servitude and the figures reflected on it will be disclosed in the description of such a servitude.
Servitude of uniform width
A diagram depicting a servitude may be dispensed with if such a servitude can be described and identified with a uniform width, or a feature at a specified distance from and parallel to a surveyed line shown on a registered diagram.
Where a servitude can clearly be identified, for example:
A servitude of right of way, 2 metres wide all along and parallel to the northern boundary of Erf 383 Noupoort, as indicated by the figure "a b".
The servitude diagram may be dispensed with.
Discretion of Surveyor-General
A further exception to the general rule of the lodging of a servitude diagram to identify a servitude is where the Surveyor-General is satisfied that the servitude can be plotted on the diagram of the land affected, i.e. the servient tenement.
When describing the servitude, the reference to the figures on the diagram of the servient tenement will be used to identify the servitude.
Represented on the general plan
Where a servitude is depicted on a general plan, a separate servitude diagram will not be necessary to identify such servitude. The figures as represented on the general plan may be used for identification purposes.
Servitude in general terms
This method of identifying a servitude is not ideal, however permissible. When a servitude is registered and the exact route has not as yet been determined, the servitude may be worded along the following lines:
Subject to a right of way over Erf 832 Mooikloof measuring 1 ha, which exact route will be determined between the owner of the dominant and servient tenement properties at a later stage.
It is quite clear that this manner of describing the servitude, although fairly cost-effective, does not provide legal certainty and could lead to future disputes.
The further downside of registering a servitude in general terms is that, if the land over which the servitude is being registered is agricultural land, the consent of the Minister in terms of the Subdivision of Agricultural Land Act 70 of 1970 will have to be lodged.
Furthermore, the provisions of Section 65(3) and 75(3) of the Deeds Registries Act, 47 of 1937, may have to be complied with, in that the consent of the holders of all other real rights registered over the servient tenement will have to consent to the registration of the said servitude unless it can be proved that this servitude does not or will not infringe on the rights of the said servitude holders.
Republished with permission from SA Deeds Journal