Noting a caveat

Gert Hattingh considers the noting of a caveat applicable to an unregistered land parcel in a deeds registry's records.

Problem Statement:
The Registrar of Deeds has been served with a caveat by the Surveyor-General stating that:
"on registration of the transfer of Portion 27 (of 24) of Erf 371, a sewer and drain servitude 2.50 metres and drain servitude 1.50 metres must be created."

The Surveyor-General has approved diagrams for Portion 24 of Erf 371 and Portion 27 (of 24) of Erf 371, but neither of these land parcels has yet been registered in the Deeds Registry.

Background facts:
The remaining extent of Erf 371 no longer exists. It has been consolidated with Portion 21 of Erf 337 to form Erf 3381. The remainder of Erf 3381 was, in turn, consolidated with Portion 6 of Erf 3381 to form Portion 7 of Erf 3381.

How and where should the caveat be noted on the Deeds Registration System database?

The very nature of the caveat, i.e. that a servitude must be registered upon subdivision of a piece of land, implies that the object of the caveat, Portion 27 (of 24) of Erf 371, is not yet registered in the Deeds Registry. Upon investigation in the Deeds Registry's records, this was indeed found to be the case.

The next logical step would then have been to note the caveat against the immediate "parent" property, i.e. Portion 24 of Erf 371. However, this was not possible as it was found that this property was also not registered.

Again, the logical step would be to note the caveat against the parent of Portion 24, i.e. Erf 371. However, (and this is where the problem starts) Erf 371 no longer exists, Deeds Registry records show it had previously been consolidated.

At this point, one may ask the question: If Erf 371 no longer exists, how can it be that an (apparent) direct subdivision of that Erf (i.e. Portion 24 of Erf 371) can still come into being? This would be tantamount to saying that a "grandparent" (Erf 371) gave birth to a "child" (Portion 24) and even produced a "grandchild" (Portion 27), after death. This scenario is as impossible in registration terms as it is in real life.

What is an indisputable fact, however, is that both Portions 24 and 27 owe their existence to Erf 371. Somewhere along the line, they "descended" from Erf 371, if not directly, then by virtue of some other intermediate registrations.

We therefore have to look elsewhere for the solution. There are basically three options remaining. These are:

Portion 24 of 371 may be a consolidation of two or more other Portions of Erf 371.

Portion 22 of Erf 371 and Portion 23 of Erf 371 (deducted from Erf 371 while it was still "alive"), may still have to be consolidated to form Portion 24 of Erf 371. While a consolidated diagram for Portion 24 may already be approved, the CCT is not yet registered; or Portion 24 may be a subdivision of an existing subdivision of Erf 371.

Portion 24 may be an unregistered Portion of an existing Portion (let's say Portion 23) of Erf 371, i.e. "Portion 24 (of Portion 23) of Erf 371". That means that the description of Portion 27 (a subdivision of Portion 24) would, in accordance with the Surveyor-General's convention for property descriptions, only include one previous level, i.e. Portion 24.

Portion 27 would therefore be described as "Portion 27 (of 24) of Erf 371", without any reference to the "intermediate parent", i.e. Portion 23; or Portion 24 should have been deducted from the remainder of Erf 371 before it (remainder of Erf 371) was consolidated, but this was overlooked by the Registrar of Deeds. This is a fundamental error in registration which may require an Order of Court to rectify.

As far as the noting of the caveat is concerned, we have established the following beyond doubt:

The caveat cannot be recorded against the remainder of Portion 27 (of 24) of Erf 371, or against Portion 24 of Erf 371, or against the remainder of Erf 371. None of these properties exists and we cannot note a caveat against a non-existent land parcel.

The only solution is to interrogate the Surveyor-General's records in order to positively establish the "parentage" of Portion 27. This information cannot be assumed or obtained from the Deeds Registry's records.

Once the "family tree" of Portion 27 (of 24) of Erf 371 has been established, the lineage must be traced upwards (back) and the caveat must be noted against the first registered property or properties in that line. If, as suggested above, a consolidation of properties has yet to take place, the caveat must be noted against all components of such consolidation.

The noting of the caveat, even against the correctly registered property(ies) at this point, will serve no purpose if it is not correctly brought forward during subsequent dealings with those properties. Deeds Registry examiners must interrogate and note the purpose of each and every caveat they come across, understand the reason for it and anticipate the consequences if it is not dealt with or taken forward correctly.

The deliberations and conclusions above are based on one of the fundamental principles of a Deeds Registry's land register, namely that it should reflect only "registered" properties. Deeds Registry staff often succumb to the temptation to "create" a "dummy property" for the purposes of noting a caveat against a land parcel which does not yet exist. This practice should be condemned in the strongest possible terms. By harbouring fictitious properties we are not only diminishing the integrity of our registers, we are also misleading our clients.

Republished with permission from SADJ

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