Lapsing of servitudes by merger

The lapsing of praedial servitudes by merger is more difficult to identify than the merger of personal servitudes. Where the owner of the dominant tenement also becomes the owner of the servient tenement or vice versa, a praedial servitude lapses by merger. However, the merger only occurs on registration of the dominant or tenement servient in the name of the owner of the opposite tenement. It is for this reason that practitioners have to bring the condition forward into the deed of transfer and the Registrar of Deeds will endorse the titles of both the servient and dominant tenements with regard to the lapsing of the servitude by virtue of merger.

Should the merger not be recorded against the relevant title deeds and should further transfers occur, a registrar will not endorse the subsequent titles to the effect that the servitude was wrongly included in view of the fact that a merger had previously taken place. In terms of Du Toit v Visser and Another 1950 (2) SA C and Myers v Van Heerden and Others 1966 (2) SA 649 C, there is a presumption that the unnoted "merged" servitude is revived by the inclusion in any subsequent title deeds, after the de facto merger occurred. Should the subsequent owners not require the servitude, the servitude can be abandoned or cancelled by virtue of a bilateral notarial deed. Obviously the court could also be approached for relief.

Partial mergers are not registerable (see Mocke v Beaufort West Municipality 1939 CPD 135). Where the servient and dominant tenements are co-extensive, a merger of a praedial servitude can take place. However, where the servient or dominant tenement is subdivided and such subdivision is transferred to the owner of the opposite tenement, the praedial servitude will lapse in toto in respect of the subdivision. This is not tantamount to a partial merger. The servitude will, however, remain operative between the remainder and the opposite tenement.

Where the holder of the mortgaged real rights in land acquires the ownership of that land, or if the holder of a mortgaged real right acquires those rights, or if the owner of mortgaged land who is entitled to rights of servitude over other land acquires the ownership of such other land, such acquisition of the additional land or rights shall not be registered without the consent in writing of the holder of the bond (see Section 60). Practitioners are warned that, when a merger is noted, the bondholder's consent may be required, depending on the prevailing circumstances.

As previously stated, the merger of personal servitudes is more easily spotted and recognisable, but with regard to the lapsing thereof, the same procedure must be followed as for praedial servitudes. Should the holder of a usufruct acquire the land over which the usufruct is registered, the new deed of transfer into the name of the "usufructuary" must be made subject to the usufruct and the Registrar of Deeds must endorse the new deed of transfer as to the lapsing thereof by virtue of merger.

On analogy of the case of Van Der Merwe v Van Wyk NO 1921 EDL 298, a usufruct registered over land in favour of A and B married in community of property will not lapse in toto should A acquire the bare dominium, excluded from the community of property. The new deed of transfer will be made subject to the usufruct in favour of A and B married in community of property and the Registrar will endorse the new title in respect of the merger of the usufruct of A only.

No formal application is required to effect a merger of a praedial or personal servitude against the titles in a deeds registry; however, a request from the conveyancer will assist the Registrar in identifying the merger and not allowing the revival of the servitude on subsequent transfers.

Readers will notice that RCR 33 of 1949 has been withdrawn by RCR 1 of 2005 in view of the fact that a uniform practice now prevails. However, much to my dismay, some practitioners are now of the view that deeds do not first have to be made subject to a servitude that lapses upon merger, but may summarily be omitted from new deeds. This is far from the truth, as it is trite law that the servitude can only lapse on registration, that being the date of delivery.

Allen West

Republished with permission from SA Deeds Journal