The position of personal servitude holders in forced sales

Sales in insolvency
In United Building Society Ltd and Another NO v Du Plessis 1990 (3) SA 75 (W), Wulfsohn AJ held that a lacuna exists in s 68(1) of the Deeds Registries Act 47 of 1937. Allen West disputes this and clearly shows that Wulfsohn AJ would not have reached such a conclusion had he been aware of the deeds office practice as provided for in Registrars Conference Resolutions 36 of 1959 and 2 of 1970, both of which expanded on the provisions of s 68(1).

In the light of this, he then shows what the practices of the deeds registry in fact are with reference to transferring immovable property in the following circumstances:

• Where immovable property is subject to a personal servitude and the bare dominium owner is sequestrated.
  
• Where immovable property is subject to a personal servitude and the holder of the servitude waives preference in favour of the bond.
  
• Where the waiver document by the holder of the personal servitude specifically provides that the property can be sold and transferred free from the usufruct in the event of insolvency.
  
• Where the waiver document does not specifically provide that the property can be sold and transferred free from the personal servitude in the event of a sale in insolvency, and the holder of the servitude refuses to pass transfer together with the trustee in the insolvent estate of the bare dominium owner.

• Where immovable property subject to a personal servitude is sold in execution.
  
• Where immovable property subject to a personal servitude is sold in execution at the instance of the mortgagee in whose favour preference was waived in respect of the personal servitude.