Rowan's question reads as follows:
Hi Allen I hope you can help me get clarity on a challenge I am faced with regards to a Notarial tie. I purchased a property on a sheriff auction in Feb 2013. This property was undergoing registration following payment and just prior to transfer it was identified that there was a Notarial tie to an adjacent piece of property. This was a botched Bond that was registered by ABSA Attorneys and that never included the Notarial Tied piece of land. When the property owner defaulted and the property was sold on Auction they did so leaving the original owner as the owner of the Notarial tied piece of property. The bank then attached this piece and sold it separately this year Feb 2014.
The title deeds stipulate that the properties may not be individually sold and there are now two owner's each of a property but these properties are Notarial tied to each other and neither of us can take transfer as the Deed stipulates they may not be individually transferred. I've tried to remove the Tie with the JHB Council and they say they cannot assist as the Tie was established by the Transvaal Union / related to a Road running through the property. As far as we can understand they linked this small piece of land through a Notarial Tie to the property I purchased as I don’t think they had planned such small properties in the area as it was all plots.
But now after reading your articles and comments I’m thinking that maybe we can transfer anyway as the properties can be individually owned? Different Owners In terms of RCR 17 of 1961 and confirmed by RCR 1 of 1966 the registrars of deeds resolved that it is possible to tie properties where such properties are held by different owners. It is thus not necessary that the properties being tied have to be owned by the same person. Given this information could I not use this to get the property transferred even if there are two individual owners ?
To which Allen responds as follows:
Hi Allen I hope that you can help me please. I am doing a bond for a bank in which they requested that the properties on the bond must be notarially bonded. Do I need to lodge a R0.00 transfer duty with the Notarial bond or will the notarial bond be lodged as is?
I understand that normally the notarial tie of properties is done when there is a condition(restrictive) to that effect imposed by the enforcer. What must happen if the owner wishes to tie (two) 2 adjacent properties instead of applying for the consolidation thereof? Can that be allowed?
If an application is done for a notarial tie and the building on one erf is sprinkler protected and the building on the other is not; do you then have to carry the same level of protection across to the other?
I am to address the Question by Nelson first: A notarial tie agreement must always be enforced by someone, usually the Council. It depends entirely what the reason is for the prevailing circumstances. If Council requires consolidation, it is not the prerogative of the owner to opt for a tie agreement.
In respect of the questions posed by Lance. The registration of the tie agreement is an act of registration in the deeds registry and the properties will stay two separate entities and each will remain in the same state as before the registration of the tie agreement.
Dear Allen Our property was subdivided and then notarially tied by the previous owners. This was to allow a leeway to sell portion 1 or 0 if required, but until then the notarial tie would assist in keeping costs down - that is there will be a single fee for rates, refuse collection, water and sewerage and electricity.
However, it seems that a few years ago the City of Joburg began billing for water and sewerage services, and have created a separate account for portion 1. Please help me understand this, as with all the queries and confirmations that it will be sorted out, COJ continues to bill us and charge interest on non-payment as well.
Dear Allen can a property be Notarially tied if there are not next to each other .