Section 76(1) of the Deeds Registries Act 47 of 1937 provides for exceptions to the general rule laid down in section 75(1) of the Act, that praedial servitudes, in perpetuity or for a limited period, may be created by a bilaterally executed and attested notarial deed.
In this article the proviso to section 76(1) will not be addressed, merely the first exception, namely, that a praedial servitude in perpetuity or for a limited period may be created in a transfer of land only if the servitude is imposed on the land transferred in favour of other land registered in the name of the transferor, or if imposed in favour of the land transferred on other land registered in the name of the transferor.
It is thus clear that the following requirements must be present before this exception can be applied:
- There must be a transfer of land.
- A praedial servitude must be created over or in favour of the land transferred.
- The property over or in favour of which the servitude is being created must be registered in the transferor's name.
The first two requirements do not merit any discussion as in practice they do not cause any problems. However, with regard to the last requirement that the other land over or in favour of which the servitude is being created must be registered in the transferor's name, does cause problems in practice.
Where the whole of the parcel of land is transferred and simultaneously a praedial servitude is reserved over or in favour of other land belonging to the transferor, no problems in practice are encountered.
However, when a land parcel is subdivided into numerous sub-divisions, leaving no remainder, and with the transfer of one of the sub-divisions, the transferor reserves a praedial servitude over or in favour of one of the other subdivisions which has not as yet been registered or which is being transferred simultaneously to another transferee, the provisions of section 76(1) will not be capable of being invoked for the following reasons:
- Should it be in favour of, or over one of the other subdivisions, not as yet registered, then before the servitude can be registered a certificate of registered title must be issued in respect of section 43 of the Act.
- Should it be in favour of, or over one of the other subdivisions being transferred simultaneously in the same batch, the servitude cannot be created, as the portion being transferred is not land registered in the name of the transferor. The only method of creating the servitude will be in terms of section 75, i.e. by virtue of a bilateral notarial deed entered into between the owner of the dominant and servient tenements.
Where a land parcel is subdivided into sub-divisions and the remaining extent, the provisions of section 76(1) can be invoked on the transfer of the first subdivision in favour of or over the remaining extent. On the subsequent transfer of subsequent portions, such portion must be made subject or entitled to the praedial servitude, and qualified to refer to the figures on the new sub-divisional diagram.
Conveyancers and deeds office staff alike do not apply the above practice uniformly and maintain that sections 13 and 100 of the Act should be applied and allow for servitudes to be registered in respect of sub-divisions simultaneously being transferred.
The readers' views on the above will be appreciated.
Republished with permission from SA Deeds Journal