To determine whether a notarial cession of a personal servitude must be created bilaterally or unilaterally, the provisions of the Deeds Registries Act 47 of 1937 must be consulted. The general rule is found in section 65 which provides that, unless another law provides otherwise, a personal servitude may be created by means of a deed executed by the owner of the land thus encumbered and the person in whose favour it is created i.e. bilaterally. However, there are the following exceptions to this general rule:
Servitude in favour of the general public
Where servitude is created in favour of the general public or all or some of the owners or occupiers of erven of lots in a township, the Registrar may dispense with the bilateral execution if it is in his/her opinion impracticable to require such persons to execute the notarial deed (see first proviso to section 65).
Cession of usufruct, usus and habitatio
Where a personal servitude of usufruct, usus or habitatio is being ceded to the owner of the land by the holder of such a servitude, and the deed does not impose any obligation on the owner of the land, such cession can be unilaterally entered into (see Regulation 61(2) read in conjunction with section 66).
During the 2005 Conference of Registrars, the question of the interpretation of Regulation 61(2) arose. The Conference held that the unilateral execution of a cession of usufruct, usus or habitatio will only be permitted if such servitude is ceded in favour of the owner of the land thus encumbered (see RCR 24 of 2005). In all other cases, personal servitudes, irrespective of their nature, must be ceded in terms of a bilaterally executed notarial deed, subject to the exception contained in section 65, as addressed above.
The above conference resolution, which has shed more light on the interpretation of Regulation 61(2), has definitely changed the existing practice in many of the Deeds Registries, and should be strictly adhered to.
Republished with permission from SA Deeds Journal