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The position of personal servitude holders in forced sales

9 July 2003

Sales in insolvency
In United Building Society Ltd and Another NO v Du Plessis 1990 (3) SA 75 (W), Wulfsohn AJ held that a lacuna exists in s 68(1) of the Deeds Registries Act 47 of 1937. Allen West disputes this and clearly shows that Wulfsohn AJ would not have reached such a conclusion had he been aware of the deeds office practice as provided for in Registrars Conference Resolutions 36 of 1959 and 2 of 1970, both of which expanded on the provisions of s 68(1).

In the light of this, he then shows what the practices of the deeds registry in fact are with reference to transferring immovable property in the following circumstances:

  • Where immovable property is subject to a personal servitude and the bare dominium owner is sequestrated.
  • Where immovable property is subject to a personal servitude and the holder of the servitude waives preference in favour of the bond.
  • Where the waiver document by the holder of the personal servitude specifically provides that the property can be sold and transferred free from the usufruct in the event of insolvency.
  • Where the waiver document does not specifically provide that the property can be sold and transferred free from the personal servitude in the event of a sale in insolvency, and the holder of the servitude refuses to pass transfer together with the trustee in the insolvent estate of the bare dominium owner.
Sale in execution of a debt
Here the writer looks at the following situations:
  • Where immovable property subject to a personal servitude is sold in execution.
  • Where immovable property subject to a personal servitude is sold in execution at the instance of the mortgagee in whose favour preference was waived in respect of the personal servitude.
The question as to whether the holder of a personal servitude must join the sheriff in passing transfer of land sold in execution is also considered.

derebus.org.za website

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