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Qualification of servitudes

29 June 2006

The qualification of servitudes and conditions on consolidation of properties must be done correctly from the outset because future subdivisions and subsequent consolidations of the already consolidated property become a nightmare if it is not initially simplified. Here is an example to illustrate the above:

Erf 1 and 2 are subject to certain servitudes, which are described as follows on the separate diagrams of the erven:

The figure ABCD represents Erf 1, …


Servitude notes:
1. The figure abcd represents a power station servitude 3 sq metres in extent, registered by K243/2000S.
2. The line vw represents the northern boundary of a 2-metre servitude for municipal services, registered by K169/2004S.

The figure ABCD represents Erf 2, …


Servitude notes:
1. The line xy represents the northern boundary of a 2-metre servitude for municipal services, registered by K169/2004S.

Consolidation:
The diagram of the consolidated Erf 1 and Erf 2 reads as follows:
1. The figure ABEF represents Erf 1, …
2. The figure BCDE represents Erf 2, …

The figure ACDF represents Erf 100, 742 sq m in extent.


Servitude notes:
1. The figure wxyz represents a power station servitude 3 sq metres in extent, registered by K243/2000S.
2. The line lmn represents the northern boundary of a 2-metre wide servitude for municipal services registered by K169/2004S.

The conditions in the Certificate of Consolidated Title will, apart from other conditions, read as follows:

Erf 100, situated …………
In extent 742 (seven hundred and forty two) square metres
As indicated on consolidated diagram no. SG ….

A. Subject to the following conditions: (no qualification)
1. Subject to a servitude for municipal purposes, 2 metres wide, of which the northern boundary of the servitude is indicated by the line lmn on diagram SG …. attached hereto, as will more fully appear from K169/2004S.

B. The former Erf 1 indicated by the figure ABEF on the consolidated diagram no SG…. is subject to the following condition:

Subject to a power station servitude, 3 sq metres in extent as indicated by figure wxyz on diagram SG ... (consolidation diagram)... in favour of ESKOM as will more fully appear from K243/2000S.

IT MUST NOT BE COUCHED AS FOLLOWS AS THE SERVITUDE FOR MUNICIPAL PURPOSES IS REPEATED:

A. The former Erf 1 indicated by the figure ABEF on the consolidated diagram no SG…. is subject to the following condition:

1. Subject to a power station servitude, 3 sq metres in extent as indicated by figure wxyz on diagram SG ...(consolidation diagram)... in favour of ESKOM as will more fully appear from K243/2000S.
2. Subject to a servitude for municipal purposes, 2 metres wide, of which the northern boundary of the servitude is indicated by the line lm on diagram SG …. attached hereto, as will more fully appear from K169/2004S.

B. The former Erf 2 indicated by the figure BCDE on the consolidated diagram no SG…. is subject to the following condition:
1. Subject to a servitude for municipal purposes, 2 metres wide, of which the northern boundary of the servitude is indicated by the line mn on diagram SG …. attached hereto, as will more fully appear from K169/2004S.

The power station servitude is registered only in respect of the previous Erf 1. It will therefore be necessary to qualify only that condition in the Certificate of Consolidated Title.

From the diagrams of the individual erven, it is clear that the servitude for municipal purposes is exactly the same servitude registered in respect of both erven, because it is registered by means of the same servitude deed, namely K169/2004S. As the entire consolidated property is subject to the same servitude, qualification is not necessary and the servitude should not be qualified as it could only complicate qualification of conditions in future, as stated above. The less qualification used, the fewer problems could arise, and especially when more erven or portions of a farm, for example, are consolidated. In such a case the whole property is subject to the same condition and no further qualification is necessary.

The example below is similar to that of a Certificate of Consolidated Title that was lodged at the deeds registry some time ago in respect of which various portions of a farm were consolidated, as illustrated. Each portion was qualified separately, subject to the condition, which was exactly the same condition. The qualification of all those portions extended over 2 pages, which was unnecessary as, at the end, the entire property was subject to exactly the same condition (see figure).


The servitude xy must be described in respect of the whole property, e.g. if the figure ABCD represented portion 20 of the consolidated farm, the condition must be set out as follows:

The property is subject to a 2-metre wide servitude for ….. purposes in favour of ….., of which the centre line is indicated by the line xy on consolidated diagram no SG … attached hereto.

By Marie Grovè
Deeds Training

Republished with permission from SA Deeds Journal

The above practice is related to the office of the Pretoria Deeds Registry, but inputs from the other offices will be appreciated. - Editor SADJ


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