Section 29 of the Sectional Titles Act 95 of 1986 (the “Act”) empowers the body corporate to execute servitudes or restrictive agreements burdening the land shown on the relevant sectional plan or to accept servitudes or restrictive agreements benefiting the said land. However, nowhere in the Act is this power entrusted on the owner of a section. This thus begs the answer as to whether an owner of a section may afford a right of way over his/her section in favour of other “land ”, albeit a section or adjoining land. In terms of Registrars Conference Resolution 51 of 2007, it was resolved that a right of way in favour of other sections is capable of being registered, provided it is depicted on the general plan.
An owner of a section merely owns part of the building together with an undivided share in the common property, and thus has no locus standi to burden the common property with a praedial servitude.
Recently a batch of deeds was lodged, together with a praedial servitude couched along the following lines:
The cedent as owner of the Commercial Parking Sections, being the servient sections for purposes of this servitude right of parking, hereby grants to the cessionary a servitude right of parking over the sections referred to in paragraphs 1.1 to 1.8, in favour of the cessionary, and its successors in title.
The registration of such a servitude can cause an untenable situation from a management perspective and thus it is contended that the legislature never intended for owners of sections to afford praedial servitudes over their sections. This matter will have to be addressed by the Chief Registrar of Deeds, as a matter of urgency.
Was the registration of the servitude referred to permitted to be registered by the Registrar / Deeds Office?
It is a common occurrence for the Chief Registrar not to check conduct rules for illegalities. Hence the need for this to be one of the main functions of the new Ombud Service.