Couching of waiver

The Sectional Titles Act, 95 of 1986 does not provide for the waiver of a personal servitude in a sectional bond. The matter was recently discussed at the Registrars' Conference, and the Registrars resolved that the bond must be made subject to the usufruct and the waiver must be contained in the bond, and not the annexure:

52/2007 Couching of waiver of preference of usufruct
Uncertainty at present prevails as to how the waiver or preference of a real right, such as a usufruct, must be couched in a sectional bond.

Resolution:
The usufructuary must either personally or in terms of an agent appear before the con veyancer. The bond must be made subject to the usufruct and the waiver must be contained in the bond and not the annexure.

Unfortunately the conference did not state whether the Power of Attorney (PA) must be lodged when the usufructuary (or holder of the personal servitude) appoints an agent by means of a PA. It can be reasoned both ways whether the PA must be lodged or not.

In the first instance, the PA falls within the ambit of the documents described in Annexure 6B, as referred to in regulation 40 of the Sectional Title regulations, in which case the PA should not be lodged.

It can also be reasoned that the personal right is waived in terms of the Deeds Registries Act, 47 of 1937, and not in terms of the Sectional Titles Act, 95 of 1986. Therefore the PA must be lodged.

It is suggested that the waiver of preference in the bond, as directed by the Conference should be set in the example below, namely:

Mortgagor hereby binds as a FIRST MORTGAGE, subject to the conditions set out in the annexure to this bond:

A unit consisting of:

(a) Section No 2 as shown and more fully described on Sectional Plan No SS 91/1996 in the scheme known as BATCAVES in respect of the land and building or buildings situated at ERF 957 ELDORAIGNE TOWNSHIP, in the local authority of City of Tshwane Metropolitan Municipality of which section the floor area, according to the said sectional plan is 90 (NINETY) square metres in extent; and

(b) an undivided share in the common property in the scheme apportioned to the said section in accordance with the participation quota as endorsed on the said sectional plan.

Held by virtue of Deed of Transfer ST
SUBJECT TO ALL THE TERMS AND CONDITIONS CONTAINED THEREIN AND A LIFE LONG USUFRUCT IN FAVOUR OF EMMA GEEL, IDENTITY NUMBER 520101 0032002, UNMARRIED, WHICH RIGHT IS BEING WAIVED IN FAVOUR OF THIS BOND, AS WILL APPEAR LATER ON IN THE BOND

*1 the undersigned, ALEXANDER HONEY, duly authorized by virtue of a power of attorney, signed at Pretoria on 7 January 2004, by EMMA GEEL, IDENTITY NUMBER 520101 0032 002, UNMARRIED, the holder of the usufruct over the within mentioned property, do hereby waive the usufruct on be half of the usufructuary, in favour of the mortgagee.

Signed at Pretoria on 20 July 2004



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Alexander Honey
Duly authorized by Usufructuary



SIGNED at PRETORIA on 26 July 2004



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Mortgagor / Duly authorized agent of
Mortgagor


 

Before me Elaine Buckeroo
Suite 16, Wlldberry Park
777 Wildberry Avenue
MUCKLENEUK


 

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CONVEYANCER



Registered at PRETORIA on



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REGISTRAR OF DEEDS

*The exact wording of the waiver is the prerogative of the preparer.