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Qualification of conditions - 1

23 September 2009

Introduction
The aim of the qualification of conditions in deeds of transfer and certificates of title of land, is to indicate to what extent a subdivision of land (including the remainder thereof after subdivision) is subject to existing conditions or entitled to existing rights created over a larger land unit (in the case of subdivisions). Qualification of conditions therefore has legal security as its main objective.

In this article, it is endeavoured to address qualification of conditions in all Deeds Registries.

1. Qualification of conditions in the former Transvaal
(See also Pretoria Registrars Circular 22 of 2001)

General
When is qualification of conditions necessary, or unnecessary?

  • If a servitude or condition is of such a nature that it in effect becomes a separate servitude or condition on the portion or share being transferred, (that is separate in all respects from any servitude or condition on the left over remainder which it enjoyed or to which it was subject at the time of division, and the servitude or condition is capable of being altered, amended or cancelled in respect of such portion or share without reference to the remainder), then qualification is unnecessary.

    Put in another way, a condition or servitude which becomes co-extensive with or wholly within the boundaries or a portion of a tenement being transferred, and on the remainder thereof, is in fact divided and becomes, for all intents and purposes, a separate servitude for each portion created and qualification is thus unnecessary.

  • In general it may be said that, when a servitude is clear and unambiguous without qualification, qualification is unnecessary. Where absence of qualification creates confusion or misstatement of fact, qualification is necessary.


There will sometimes be border line exceptions where the above rules cannot be applied satisfactory. Titles of land must contain no ambiguities or contradictions.

Personal servitudes
No qualification is necessary on the application of the co-extensive rule where the property being subdivided is subject to a servitude of usufruct, usus or habitation. No qualification is similarly necessary if the land being subdivided is subject to the terms of a personal servitude with ancillary rights, such as an ESKOM power line, and the portion and the remainder are separately subject to the servitude and ancillary rights, i.e. the servitude runs over the portion and the remainder.

Qualification is, however, necessary where the portion being transferred, is not subject to the main servitude but only to the ancillary rights which have not been restricted to the remainder. In this case the co-extensive rule would not apply as the ancillary rights are not separable from the main servitude situated on the remainder. If a power line servitude with ancillary rights is for instance registered over Portion 5 of the farm A and Portion 10 (a portion of portion 5) of the said farm is transferred from it to the effect that the powerline falls as a whole in the remainder of Portion 5 and the ancillary rights are not restricted to the remainder alone, the servitude condition must be brought forward in the deed of transfer of Portion 10, qualified for example as follows:


The former portion 5 of the farm A, a portion whereof is hereby transferred, is subject to a powerline servitude with ancillary rights in favour of ESKOM, as will more fully appear from Notarial Deed of Servitude No K S.


Qualification is also necessary where rights of enjoyment over the property being subdivided are numerically or otherwise defined or restricted, e.g. a right of grazing which specifies the number of cattle which can be grazed or a right to water which is defined in turns, hours, etc. out fo a river, dam, spring, furrow, etc.

Example:


The Former portion 6 of the farm A, a portion whereof is hereby transferred is subject to a right of grazing for 200 head of small stock in favour of the Town Committee of Kleinbegin, as will more fully appear from Notarial Deed of Servitude No. K S.


Qualification is also necessary where the servitude is vaguely defined or defined in general terms and it is impossible to determine from the registered data whether it affects or does not affect the portion being transferred.

The rules above also apply when a certificate of registered title is issued in terms of section 43 or section 46(4) of the Act, in respect of a portion of a piece of land.

  • Transfer of a share of land
    There is no necessity to qualify a personal servitude to show that a share of the burdened property is being transferred as this is evident from the deed itself.

    If the servitude applies only to a share, qualification may, depending on the circumstances, be necessary.

  • Transfer of a portion of an erf or holding
    Where all conditions are of a general nature, for example a prohibition on the making of bricks or the keeping of fowls, etc., the conditions can be brought forward unqualified in the title of the subdivision, including the remainder of the erf concerned. The rule applies whether the consent to subdivision was granted by the Premier or local authority.

If the Premier and/or local authority consents to the subdivision of an erf, each subdivision will be unqualified subject to the existing township conditions, whether a condition with regard to one dwelling is a part thereof or not. On subdivision of an erf which comprises of a consolidated unit, the same principle is applied.

Naturally, if the consent by the Premier or local authority contains any direction with regard to the applicability of the existing title conditions in respect of the subdivision, it must be carried out in the most practical way.

Where conditions requiring qualification are included amongst conditions of a general nature not requiring qualification, it is not correct practice to qualify all the conditions. Only those conditions which require qualification must be qualified by the addition, in brackets, after such condition(s) of the words:


(This condition applies to Erf/Holding ........ portion 1 of which is hereby transferred).


Transfer of a share

No qualification is necessary on the transfer of a share in land.

Conditions imposed by statute

When new conditions imposed in pursuance of statute are included in a deed, a reference to the statute or authority concerned acting in terms of the statute, must be inserted in the introduction to such conditions, e.g.:


Subject to the following condition(s) imposed in terms of section 6 of the Advertising on Roads and Ribbon Development Act No 21 of 1940


OR


Subject to the following condition(s) imposed by the Premier in terms of Section ........ Ordinance/Act .........


When township/holding conditions are quoted, it is, however, not necessary to refer to the proclamation whereby the township/holdings was proclaimed or approved.

Republished with permission from SA Deeds Journal

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