Conditions contained

The decision in the case of Van Rensburg and Another v Nelson Mandela Municipality and Others (2007) 4 ALL SA 950 (SE) raises certain important aspects for the deeds office, especially the effect of registered conditions. The facts in the case were, briefly, that the applicants and the respondents were residential neighbours embroiled in a dispute about buildings on urban property. The applicants sought an order for the demolition of the offending buildings on the property owned by the second to sixth respondents, and an interdict to prevent nuisance emanating from the property

Froneman J, in ordering the demolition of the buildings, stated, on page 952, as follows:
The restrictive conditions are registered in favour of the first respondent and any erf holder in the Summerstrand Extension Township. They provide that the erf be used for residential purposes only, that only one single house dwelling for use by a single family and ordinary outbuildings required for such use may be built on the erf, and that no garage other than for ordinary use for persons residing on the erf may be erected on the erf.

It is common cause that these kinds of restrictive conditions take precedence over the municipality's zoning and planning schemes. Generally this follows from their characterisation in our case law as praedial servitudes in favour of other erf holders (Ex Parte Rovian Trust (Pty) Ltd 1983 (3) SA 209 (D) at 212E - 213F; Malan and Another v Ardconnel Investments (Pty) Ltd 1988 (2) SA 12 (A) at 40B - I) and in this case also particularly, from the express wording of clause 1.6.5 of the Council Zoning Scheme Regulations. Consequently any possible permission by the municipality to build or use buildings contrary to the conditions cannot be lawful.

Section 4(1)(b) applications relating to the amendment of deeds with regard to addition or omission of conditions in title deeds are a common occurrence in the deeds registries. In view of the severe consequences, such as the demolition of buildings, that might flow from non-compliance with registered condition, as can be gleaned from the Van Rensburg case, it is noteworthy that examiners should be extremely cautious in dealing with section 4(1)(b) applications that have a bearing on registered conditions. It must also be noted that permitting amendments that could be detrimental to the interests of third parties could also be costly to the examiners concerned.

Lastly, the guidelines contained in the article by Allen West, are extremely useful in the application of section 4(1)(b), and it is suggested that use thereof be made, as doing so would help to avert many a disaster.

Republished with permission from SA Deeds Journal

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