5. Praedial Servitudes
5.1 Transfer of a portion of land
5.1.1 It must first of all be determined whether the servitude is applicable to the new subdivision. If it does apply, qualification is in principle necessary. The following serves as an example: .
“The farm A (portion … whereof is hereby transferred), is subject/entitled to the following servitude/condition …..”.
5.1.2 If the portion being conveyed is not directly affected by the servitude by virtue of its location, but ancillary rights are involved, it must be qualified as explained in paragraph 5.1.1. .
5.1.3 Where the portion being transferred is by reason of its location or for other reasons clearly not subject to the servitude/condition and there are no ancillary rights/obligations involved, such servitude must be omitted from, the deed conveying the portion. .
5.1.4 Similarly where the portion being transferred is deprived by the transferor in the power of attorney, of all rights and there are no obligations, the servitude must be omitted from the deed conveying the portion. See section 76(4) of The Act. Where the portion being transferred is deprived of its rights by the transferor, but there are ancillary rights and obligations involved, then the condition / servitude must, notwithstanding the provisions of section 76(4) of The Act, first be quoted and then followed by a “non enjoyment” clause, stating that the rights have been retained by the transferor as owner of the remainder as in the case of water rights explained below. .
5.1.5 Regarding water rights, in view of the potential prejudice to owners, it is considered, notwithstanding the provisions of section 76(4) of The Act, to be of paramount importance to have a deprivation clause where a subdivision is deprived of water rights to which the original land was entitled to. It is suggested that the following wording is used at the end of the quotation of the water rights: .
“Without rights to water from the dam on ….., water furrow on ….. etc., referred to above, as created in Deed of transfer No …….., which rights have been retained by the owner of the Remainder of …….., measuring ……..”
“Which rights are reserved by the transferor as owner of the Remainder of the farm …….., measuring ……..”.
5.1.6 Where there are defined rights of enjoyment, such as 1000 litres of water per week or grazing rights for 50 cattle, etc. qualification is most essential in order to indicate clearly that the portion being transferred is only entitled to pro rata share in those rights, for example –.
“The farm ……, Portion …… of which is hereby transferred, is entitled to 1000 litres of water per week from the dam on ……”.
5.1.7 Where there is a re allocation of rights on subdivision, the full allocation should be set out in the title of every portion transferred and eventually in the deed transferring the remainder. What has been said in the previous paragraphs relating to water rights, must also be applied to water rights arising from riparian ownership. .
5.1.8 Double qualification will not be permitted, that, is, qualification in the introductory clause e.g. .
“The farm A, a portion whereof is hereby transferred is subject to the following conditions ……(quote)……” .
And thereafter a further qualification in the body of the quoted servitude or condition whenever the farm A is mentioned. .
Examiners must note that a remainder of land must also be regarded as a subdivision of the original land unit. The above mentioned principles apply mutatis mutandis to a remainder being transferred. .
It must therefore, as in the case of a new subdivision, be determined whether the servitude does in fact apply to such remainder, that is, that the servitude has not been wholly included in a portion of land transferred from the holding title. .
5.2 Transfer of share in land
There appear to be no necessity to qualify in case of a transfer of a share in land. Praedial servitudes in any event do not attach to undivided shares in land. In rare cases where praedial servitude have by error been registered against a share in land, qualification will however be necessary. .
The qualification of conditions in certificates of consolidated title is a problem area. .
The general rule is: Determine whether qualification is necessary and to what extent. .
6.1 If the components being consolidated are all subject to the same conditions of a general nature, qualification is obviously not necessary. It will not be necessary to state that each of the components represented by the figure on the consolidated diagram is subject to the conditions concerned. The whole becomes subject ipso facto in the same way as the components are subject. It will only be necessary to state –.
“Subject to the following condition(s): ……(quote…….” .
6.2 If the components being consolidated are all subject to the same servitude, created by the same notarial deed (as a result of previous subdivisions which are now being consolidated), qualification will likewise not be necessary. A reference to the servitude area or line representing the servitude on the diagram annexed to the certificate of consolidated title and the notarial deed where it was created, will however be necessary for example –.
“Subject to a servitude of …… in favour of …… as indicated by the figure/line …… on the annexed diagram SG No …… as will more fully appear from Notarial Deed of Servitude No K……../……S.” .
6.3 If the condition or servitude was created against different components in different (notarial creative deeds, it must be properly qualified with reference to the relevant creative deed in respect of the relevant components, for example –.
“The former portion …….. of the farm …….. indicated by the figure ……… on diagram SG No …….. annexed hereto, is subject to the following condition/servitude ……..(quote)…….., as will more fully appear from Deed of …….. No ……..”.
6.4 If some of the components are subject to conditions of a general nature (see paragraph 6.1 above) or the same servitude (see paragraph 6.2 above), it is obvious that a qualification is necessary, since the whole of the consolidated area cannot be made subject thereto. .
If the components which are subject to the condition(s) or servitude are contiguous to each other, it is good conveyancing to quote the figure comprising those components, for example – .
“The former portions …… and …… of the farm …… represented by the figure ……. On the annexed diagram SG No ……, are subject/entitled to ……(quote)……” .
If the components are not contiguous, then the separate figures must be quoted, but the condition must only be quote once, for example – .
“The former portions ….. and ….. of the farm ….. indicated by the figures ….. and ….. respectively on the annexed diagram SG No ….. are subject/entitled to the following conditions/rights: ….. (quote) …..” .
6.5 If various components are subject to various conditions, the conditions in respect of every component must be qualified irrespective whether the conditions are of a general nature or not. In each case reference must be made to the previous description of such a component for example –.
“The former Portion ….. of the farm ….. indicated by the figure ….. on the annexed diagram SG No ….., is subject/entitled to the following conditions/rights”: ….. (quote) …..”.
6.6 If the components are subject to the same general conditions but one or more of the conditions are restrictive in nature, i.e. limited in its application to each component, then qualification is also a pre requisite. For instance, each component may be subject to a condition prohibiting the erection of more than one dwelling house thereon. In the absence of statutory authority, the whole or the consolidated property may not unqualified be made subject o such a condition. The condition must be qualified to indicate that it is restricted to a particular component or components. This is done in the following manner: At the end of the restrictive condition, add the following qualification for example –.
“(This condition is applicable to each of the former erven …. and …., represented by the figures …. and …. respectively on diagram SG No …….., annexed hereto.)” .
As explained in paragraph 4.1.2 above, this type of qualification is only applied when dealing with erven in a township or agricultural holdings. .
6.7 The method of qualification
6.7.1 When a condition/servitude applicable to a component has already been qualified in the title deed of the component (That will obviously be the case if the condition/servitude was not created on the component but against a larger land unit of which the component forms a portion), then reference to the original property description against which the condition/servitude was imposed or created, must be made in the qualification of the condition in the certificate of consolidated title, for example –.
“The former farm ….. (of which that portion indicated by the figure ….. on the annexed diagram SG No ….., forms a portion) is subject/entitled to the following conditions/rights, as will more fully appear from …… (notarial/creative deed) …..”.
6.7.2 When a condition/servitude applicable to a component is not qualified in the title deed of the component, it must be qualified in the certificated of consolidated title by referring to the (previous) components on which it was applicable, for example –.
“The former Portion ….. of the farm ….. indicated by the figure ….. on the annexed diagram SG No ….., is subject/entitled to …….., as will more fully appear from ….. (notarial/creative deed) …..”.
Please carefully note the following in respect of paragraphs 6.7.1 and 6.7.2:
Firstly. Reference to lettering or figures on diagrams of previous consolidations or subdivisions of such consolidations must at all costs be avoided. Only refer to lettering or figures on the diagram attached to the new certificate of consolidated title. .
Secondly. Where a condition or servitude is created by way of a notarial deed, it is practice to refer to the notarial deed in the condition. If it is not created notarially, a reference to the creative deed will be good conveyancing but optional. .
7. Subdivision of consolidated land
7.1 Transfer (or certificate of registered title in terms of section 43 of the Act), in respect of a portion of the consolidated land
When consolidated land is subdivided at a later stage in such a manner that portions of the previous components form part of the new subdivision, the boundary lines of the previous components will be indicated by dotted lines on the subdivisional diagram and the points where the subdivisional boundary lines intersect the dotted component lines, will be lettered in order to facilitate the qualification of the conditions. The method of qualification of conditions will in this case be the same as with consolidations (see paragraph 6.7), in other words, reference must be made to the former description of the components, for example –.
“The former Portion …… of the farm ……., a portion whereof is indicated by the figure …….. on annexed (subdivisional) diagram SG No …….., is subject/entitled to the following conditions/rights: …….(quote)……..” .
7.2 First transfer of the Remainder of consolidated land
When the remainder of consolidated land is being transferred for the first time and it is, according to the aforementioned principles, necessary to qualify the condition(s)/servitude(s) applicable to the remainder of a component of the consolidated land (because of the inclusion of a portion of that component in the portion of the consolidated land being transferred away), the conveyancer must request the Surveyor General to letter the points where the subdivisional boundary lines intersect with the component lines on the client’s copy of the consolidation diagram, with the view of qualifying the conditions/servitudes applicable to the remainder of the component concerned. The qualification of the condition(s)/servitude(s) will in this instance be the same as in the certificate of consolidated title except for the difference in the figure on the diagram. .
8. Final Remarks
Examiners are requested not to reject deeds where conditions have unnecessarily been qualified as long as the qualification is correct and will not cause uncertainty or confusion.
Head of Deeds Training
Qualification of Conditions in a CCT: If one of the components is subject to the restriction that it may not be transferred within 2 years after first transfer without the consent of the developer of the Township (which 2 years have not yet expired) would one still qualify with reference to the component only. The restriction on transfer of the relevant component within the 2 years would become meaningless once the consolidation has been registered and surely the restriction cannot affect the entire consolidated Erf.