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8 October 2003
Because this section limits the duration of a usufruct to the lifetime of the person in whose favour it was created and further restricts the cession thereof to the owner of the land encumbered, a contingent usufruct is not capable of being registered in theory.
The author starts by drawing a clear distinction between a contingent usufruct and a usufruct in favour of more than one person, before looking at the problem of contingent usufructs and their registrability in practice. Because a usufruct cannot be registered over a property which is already subject to a usufruct, practice has allowed for the registration of a contingent usufruct. The registrars thus allow for the bare dominium to be registered subject to the existing usufruct, while the deed will also be made subject to the condition in respect of the contingent usufruct - this is not registered but is claimable only when the first usufruct has elapsed.
The application of the Subdivision of Agricultural Land Act 70 of 1970 and s 2 of the Transfer Duty Act 40 of 1949 and the provisions of s 68(1), 69, 69bis and reg 41(7) of the Deeds Registries Act 47 of 1937 are also examined in this article.
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