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Plotting servitudes

4 November 2010

Introduction
Uncertainty prevails as to the manner of plotting and the qualifying of conditions when land is subdivided. Not much has been written on this subject and the plotting and qualification of conditions are best explained by way of practical application.

It is not endeavoured in this article to cover everything pertaining to the plotting and qualification of conditions, but should provide the reader with a foundation on which to build.

The practice and discussion that follows, pertaining to the qualification of conditions, is unique to the deeds registry of Pretoria and Johannesburg, however, the plotting of conditions is uniform in all deeds registries.

Practical example
Where, for example, the title deed of the farm Prescription 312, namely T 3230/2006, contains the following conditions:

  1. Subject to a servitude to convey electricity in favour of Eskom together with ancillary rights, and subject to further conditions, as will more fully appear from Notarial Deed K 189/1980 S with diagram annexed.

  2. Subject to a servitude of right of way in favour of the general public, 10 metres wide, the southern boundary of which servitude is indicated by the line CD on diagram S.G. No A 731/1942 annexed to Deed of Grant 423/43, as will more fully appear from Notarial Deed K 234/1989 S.

  3. A portion of the within farm, measuring approximately 2,7832 hectares, has been expropriated by the South African National Roads Agency, as will more fully appear from EX 1723/1987.

  4. The within land is subject to the following conditions imposed by the Controlling Authority in terms of Act 21 of 1940.

    (i) No dwelling may be erected on the land, within 95 metres of the building restriction road.

    (ii) Only one dwelling may be erected on the land.

    (iii) The land may not be further subdivided.


If the property, held under the aforesaid title deed, which is subject to the abovementioned conditions, is subdivided and Portion 1 of the farm is to be transferred, the conditions contained in the title must be carefully analyzed to ascertain how they are to be incorporated into the new deed of transfer. The diagram for the subdivision and the parent diagram, (i.e. the diagram for the farm) must also be analyzed in order to plot the conditions.

Figure 1: Diagram for the farm Prescription 312



Diagram S.G. No. A 731 of 1982

The figure ABCD represents the farm Prescription 312, Registration Division LT, Province Gauteng.

The following servitude notes appear on the above diagram:

  • The line ab represents the centre line of a power-line servitude vide K189/1980S.

  • The line DC represents the southern boundary of a servitude 10 metres wide vide K 234/1989 S.



Figure 2: Diagram for Portion 1 of the farm Prescription 312



Diagram SG No. 5206/2004

The figure AByx represents Portion 1 of the Farm.

On analyzing the said conditions and servitudes the following becomes apparent:
  • The Eskom servitude contains ancillary rights, i.e. Eskom's right of access over the property to reach the servitude area for purposes of servicing and maintenance. The whole farm is subject to these ancillary rights, but only that portion of the farm over which the power-line runs is directly subject to the power-line servitude.

  • The right of way servitude does not contain any ancillary rights and therefore only affects an area of 10 metres wide along the southern boundary of the farm. Only the remainder of the farm is therefore subject to that servitude.

  • The expropriation notice only affects a portion of the farm. The sketch plan attached to the expropriation notice must be perused to determine whether the portion expropriated affects the property now being transferred, or whether, by virtue of situation, the Portion being transferred is affected thereby or not.

  • The conditions imposed in terms of The Roads and Ribbon Development Act, 21 of 1940, restricts the use of the farm as a whole.


On transfer Portion 1 of the farm to the purchaser thereof, you will have to ask yourself some questions:

  • Is this portion subject to the power-line servitude (in other words does the power-line run over the portion you have to transfer) or is it only subject to the ancillary rights?

  • Is this portion subject to the servitude of right of way in favour of the general public or not? The answer to this will depend on where the subdivision is situated and where the right of way is situated.

  • Is this portion affected by virtue of situation to the expropriation notice? The answer to this will depend on where the expropriated portion is situated.

  • Is the farm as a whole subject to the conditions imposed by the Controlling Authority?


Plotting of conditions
The principles set out above are applied as follows:
  • Is Portion 1 subject to the power-line servitude or only the ancillary rights? Only by virtue of the ancillary rights, and not by virtue of its situation.
  • Is the Remaining Extent subject to the power-line servitude or only the ancillary rights? Directly subject to the servitude and also the ancillary rights.
  • Is Portion 1 subject to the right of way in favour of the general public? No.
  • Is the Remaining Extent subject thereto? Yes.
  • Are Portion 1 and Remaining Extent affected by the expropriation notice? For purposes of this scenario, let us assume that by virtue of situation only the Remaining Extent is affected by the expropriation.
  • Are Portion 1 and Remaining Extent affected by the conditions in terms of Act 21 of 1940? Yes, both are subject thereto.


Qualification of conditions
Now that the conditions have been plotted and it is evident which conditions the subdivided portion is subject to, the question that now arises is how must the conditions be qualified?

It is done as follows, and an explanation will be given afterwards:

  1. The farm Prescription 312, Registration Division L T, Province Gauteng, of which the property held hereunder forms a portion, is subject to a servitude to convey electricity in favour of Eskom together with ancillary rights and subject to further conditions, as will more fully appear from Notarial Deed K 189/1980 S with diagram thereof.

  2. The within land is subject to the following conditions imposed by the Controlling Authority in terms of Act 21 of 1940.
    1. No dwelling may be erected within 95 metres of the building restriction road.

    2. Only one dwelling may be erected on the land.

    3. The land may not be further subdivided.


Reasons for qualification of conditions

The reason for setting out these conditions is explained as follows:

Regarding the power-line servitude; the principle is that if the property is not affected directly, the condition is qualified by referring to the property over which the servitude was registered. This reference appears at the beginning of the condition.

Regarding the conditions imposed in terms of Act 21 of 1940 no qualification is necessary. The conditions apply to the whole property and therefore also to the subdivision. No reference is made to the property in respect of which this condition was originally imposed.

The conditions applicable to the Remaining Extent will be disclosed as follows, should, at some stage, the Remaining Extent be transferred:

  1. Subject to a servitude to convey electricity in favour of Eskom together with ancillary rights and subject to conditions, the centre line of which servitude is indicated by the line ab on diagram S.G. No. A 731/1942 (figure 1) as will more fully appear from Notarial Deed K 189/1980 S.

  2. You will copy condition B regarding the right of way as it appears in the title deed.

    You will copy the reference to the expropriation as in condition C in the title.

    You will copy condition D as it is referred to in the title deed.

    The only differences between the conditions in the deed of transfer for the Remaining Extent, and the deed of transfer of Portion 1 are:

    • the power-line servitude has not been qualified in respect of the Remaining Extent as that property is directly subject to the servitude; in other words the power-line crosses that property.

    • the servitude of right of way and the expropriation do not appear in the transfer deed of Portion 1 as that portion, because of its situation, is not subject to this servitude.


  3. Note: Conveyancer to certify on the lodgement cover as follows when transferring Portion 1:

    (i) "I certify that the property hereby transferred is not subject to servitude K 189/1980 S because of its situation; and also
    (ii) Not subject to EX 1723/1987 by virtue of its situation."


Further subdivisions

Any further subdivisions of Portion 1 will follow the conditions exactly as in the title to Portion 1.

With any further subdivisions of the Remaining Extent you will have to do the same exercise as was done when Portion 1 was transferred for the first time.

Suppose the Remaining Extent is now subdivided as follows:

Figure 3: Subdivision of Remaining Extent






Figure 4: Subdivision diagram of Portion 2



SG No A 821/2008

Servitude notes:
  • The line xy represents the centre line of a servitude vide K 189/1980 S.
  • The line DC represents the southern boundary of a servitude vide K 234/1989 S.


You will note that the conditions for the subdivision of Portion 2 are exactly the same as the conditions in the title of the Remaining Extent. An important principle is that you must refer to the lines as indicated on the diagram of Portion 2 (figure 4) and not as indicated on diagram SG No. A 731/1982 (figure 1, the so-called parent diagram) of the farm.

In the condition of the power-line servitude reference will be made to line xy on diagram L.G. No. A 821/2008 (figure 4) and in the condition for the right of way you will refer to the line DC on the new diagram.

Note:
If the title deed before you contains an endorsement regarding a registered servitude and a servitude diagram is annexed to the notarial deed, you must not in the subsequent deed refer to the figure or line indicated on the servitude diagram. You will conclude the condition with "... as will appear from Notarial Deed K 174/1994 S with diagram annexed ".

Qualification of consolidated property
Qualification of conditions is often more intricate in the case of consolidations. Suppose Portion 1 of the farm Prescription 312 is to be consolidated with Portion 10 of the farm Prescription 312 LT into Portion 28 of the farm Prescription 312. The consolidation diagram is shown in Figure 5.

Figure 5: Consolidation diagram - Portion 1 of Prescription 312 with Portion 10 of Prescription 312

Figure 5: Diagram for Portion 28 of the Farm Prescription



SG No 200 of 2009 contains the following:

The figure ABCD represents Portion 28 of the farm Prescription 312 L.T.

The figure AabD represents Portion 1 of the farm Prescription 312.

The figure aBCb represents Portion 10 of the farm Prescription 312.

Servitude note:

  • The line xy represents the centre line of a servitude vide K 981/54 S.


We know which conditions apply to Portion 1 of the farm Prescription 312. Portion 10 of Prescription 312 is subject to a power-line servitude in favour of Eskom in terms of notarial deed of servitude K 981/54 S.

The principles that must be applied in the case of a consolidation are:

  • which conditions applicable to the separate portions or components coincide?

  • are the conditions in the relevant title deeds qualified or not?


Portion 1 of Prescription 312

  • Condition A is qualified.
  • Condition B is not qualified.


Portion 10 Prescription 312

The title of Portion 10 contains the following condition:

(i) Subject to a power-line servitude in favour of Eskom indicated by the figure p n, as will more fully appear from Notarial Deed K 981/545, with diagram attached thereto.

The conditions will not be qualified as the power-line affects Portion 10 directly.

It is very simple to deal with conditions that have not been qualified already.

The conditions will appear in the Certificate of Consolidated Title as follows:

  1. The former Portion 1 of the farm Prescription 312 LT, indicated by the figure AabD on diagram SG No 200/2009 (figure 5) is subject to the following conditions:

    (i) Subject to a servitude to convey electricity in favour of Eskom together with ancillary rights, and subject to conditions as will more fully appear from Notarial Deed K 189/1980 S with diagram annexed.

  2. The within land is subject to the following conditions imposed by the Controlling Authority in terms of Act 21 of 1940.

    (i) No dwelling may be erected within 95 metres of the building restriction road.

    (ii) Only one dwelling may be erected on the land.

    (iii) The land may not be further subdivided.

  3. The former Portion 10 of the farm Prescription 312 LT, indicated by the figure aBCb on the said diagram SG No 200/2009 is subject to the following conditions:

    (i) Subject to a power-line servitude in favour of Eskom indicated by the figure x y on diagram SG No 200 of 2009, as will more fully appear from Notarial Deed K 981/54 S.


Note:
The condition is adapted to refer to the servitude line on the consolidation diagram and not the figure as represented on the servitude diagram attached to the Notarial Deed.

Conclusion
The above discussion is merely the tip of the iceberg when it comes to the plotting and qualification of conditions, but gives one a basis from which to work. Should conditions not be correctly plotted and qualified from the outset, it can cause grave problems with any future subdivisions, consolidations, etc.

Allen West
Deeds Training
Pretoria


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