FILTERS:

Subject to ties

20 May 2010

The matter pertaining to the consolidation of farm properties and conditions imposed by the Minister Is of concern to all and same will now be addressed in more detail.
In order to consolidate two or more farm properties (agricultural land) no consent is required. The consolidation of the farm properties would appear to achieve exactly the results sought by the Subdivision of Agricultural Land Act 70 of 1970 (hereinafter referred to as "the Act").

Should the properties, or one of them, be tied to another property, and the properties are subject to the usual Minister's condition: "... that the property may not be sold / alienated / mortgaged / or in any other way dealt with separately without the written authority of the Minister, the deeds office, and the Department of Agriculture, as a result of the deeds office's attitude, sees the consolidation of such property or properties with other land (i.e. not one of the tied properties) as dealing with the property or properties so tied. The deeds office therefore calls for the cancellation of the existing condition and the imposition of a new tie condition by the Minister. However, given a situation as set out above, the result would merely be a property held under a certificate of consolidated title with one or more, but not all, components tied to another property or properties. Surely that creates an intolerable situation?

These conditions have been imposed against properties by the Minister ever since the Act came Into operation, in more or less the same form. The only real change has been to introduce the qualification "... except the expansion of existing bonds ... of late. In my humble opinion the ideal from the start was that the owner may not "deal" as in separately sell, donate, mortgage, burden in any other way except with the Minister's consent, and that consolidation was never intended to be included in deal". The word "deal" may mean different things in different situations.

In Re Estate Margaret Young 1942 NPD 276 the validity of a deed of sale was questioned inter alia on the basis that the one trustee (administrator), who was on active service, granted a power of attorney to an agent to act on his behalf in the estate. In terms of regulation 65(4) of the Deeds Registries Act 47 of 1937 ("the DRA"), a general power of attorney is not available to deal with immovable property unless it contains specific power to do so. It was argued that the agent could not sell the land acting in terms of the power of attorney as the power of attorney in this instance failed to provide the specific powers required by regulation 65(4) of the DRA and that thus the deed of sale was invalid.

The Court found the power to be unavailable to the agent as far as the registration of the transaction in the Deeds Office was concerned, but found the deed of sale to be valid. The Court found that "dealing" in regulation 65(4) pertains specifically to dealings or registrations in the deeds registry. Dealings as set out in these conditions appear to rather have the meaning of acts by the owner to alienate or burden the land, which does not include consolidation. It is submitted that even if a condition prohibits separate transfer of the tied properties, dealing should not be inclusive of a consolidation.

The terms dealing, dealing in and dealing with are dealt with in numerous cases concerning anything from the sale of dagga to selling a newspaper on a Sunday. The terms, although they do not mean the same, generally pertain to trade, sale, disposal, etc, therefore generally selling or letting or disposing of items or stock. Consolidation of land in my mind cannot fall under any such meaning of deal or dealing. Certainly transfer will be dealing with the properly.

it must be remembered that a certificate of consolidated title, besides seemingly reinforcing the purpose of the act, is as a certificate of title ... merely a statement of fact extracted by the registrar from the existing titles and replacing them (see Jones' Conveyanclng in South Africa fourth edition, page 182 with a similar statement in the Deeds Practice Manual Page 1 to 249), albeit at the request of the registered owner. There almost seems to be no act by the owner except for an application. He ends up with the same land in a form conducive of the purposes of the Act. The Registrar in fact appears to be more active than the owner!

A certificate of registered title issued under section 43 of DRA in respect of a portion of a property which is tied to another property will, most certainly contravene the Act and it will require the Minister's consent to subdivide. Will it contravene the tie?

Conversely, will certificates of registered title issued in terms of sections 35 or 36 in respect of some land of an owner tied to another land, also require the Minister's consent? Certainly, if a certificate of consolidated title is considered to be dealing within the ambit of the conditions imposed by the Minister, then surely such certificates of registered title must also fall within the am bit of the condition. That would be absurd.

It is therefore my opinion that the issue of a certificate of consolidation in respect of a property of which some of the proposed components are tied to other land and which is subject to the usual condition imposed by the Minister, should be issued without a consent by the Minister subject to the said condition.

Readers' opinion hereon will be appreciated Editor SA Deeds Journal

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