Introduction
See Qualification of conditions - 1 for the introduction, and the discussion of personal servitudes.
Praedial servitudes
- Transfer of a portion of land
It must first of all be determined whether the servitude does or does not apply to the new subdivision. If it does apply, qualification is regarded as necessary. The following wording serves as example:
The farm .... (a portion whereof is hereby transferred) is subject to the following servitudes/rights:
Where the portion being transferred is by reason of situation clearly not subject to a servitude and there are no ancillary obligations, such servitude must be omitted from the deed conveying the portion. Similarly, where the portion transferred is deprived of all rights whereto the original land was entitled, and there are no obligations, the servitude must be omitted from the deed (section 76(4) of the Act).
If ancillary rights and duties, however apply, the servitude or condition must in the first place be quoted in full, followed by a "not entitled to" - clause in respect of the subdivision deprived of the rights.
As regards water rights, however, in view of the potential prejudice to owners arising from the provisions of the Water Act, it is considered to be of paramount importance to have a deprivation clause where a subdivision being transferred is deprived of water rights to which the original land was entitled to. This is done despite the provisions of section 76(4) of the Act.
The condition will in this instance also be quoted in full, followed by a deprivation clause, for example -
Without the rights to water in a dam, furrow etc. mentioned above, which rights have been retained by the transferor as owner of the remainder of the farm aforesaid measuring ......................
Where there are defined rights of enjoyment, such as rights to water or grazing, qualification is most essential in order to indicate that the portion transferred is only entitled pro rata to such rights, for example:
The farm B, portion 10 whereof is hereby transferred, is entitled to the following rights:
........... (describe the rights of enjoyment as they appear in the title of farm B) ...........
Where there is a re-allocation of rights on subdivision, the full allocation should be set out in the deed of transfer of every portion transferred and eventually in the deed transferring the remainder. The rights of enjoyment are firstly described as in the existing title, followed by the re-allocation.
What has been said in the previous paragraphs must be applied similarly to water rights which arise from riparian ownership.
Double qualification will not be permitted, that is qualification in the introductory clause, e.g.
The farm B, portion 1 of which is hereby transferred, is subject to.......... ………………………………………….
and thereafter qualification in the body of the quoted servitude or condition whenever Farm B is mentioned.
What has been said in respect of a portion (subdivision) applies mutatis mutandis to a remainder of land 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 transferred.
- Transfer of a share
There appears to be no necessity to qualify in such a case. Praedial servitudes do not in any case attach to an undivided share in land. In some cases, however, where praedial servitudes have been registered incorrectly against shares in land, qualification will be necessary.
- Transfer of a portion of consolidated property
When consolidated property is on a later stage subdivided in such a way that the new subdivision includes the whole or only parts of the former components of the consolidation, the boarder lines of the former components will be indicated by dotted lines on the subdivisional diagram. The purpose of this is in fact to make the qualification of conditions easy.
The method of qualification of conditions will also in this case be the same as with a consolidation, in other words each time there must be reference to the former description of the components of the consolidation, for example -
The former portion ........ of the farm ........ indicated by the figure ........ on the annexed diagram, is subject to/entitled to the following conditions/rights ........ (Quote the condition) ........
- Transfer of the remainder of consolidated property
When the remainder of a consolidated property is being transferred and it is necessary in terms of the preceding rules to qualify in such transfer as regards the remainder of component because part of such component has been included in a subdivision transferred away, the conveyancer must request the Surveyor-General to letter the points where the subdivisional boundary lines intersect the component lines on the deeds registry and client's copy of the consolidation diagram, having regard to the qualification of the condition/servitude against the remainder of such component. The qualification of the condition/servitude will in such case be the same as in the certificate of consolidated title, except that the figure will differ.
- Mineral rights
No qualification is permitted in the introductory clause except where the mineral reservation is in respect of a demarcated area of property being transferred or held by a certificate of title, because, for example, different pieces of land were consolidated, one or more of which were subject to a mineral reservation or the reservation was only in respect of a specific area of the land.
In such instance the qualification in the introductory clause will be a figure qualification, followed by the normal qualification at the end of the mineral reservation, for example:
That portion of the land hereby held/transferred and indicated by the figure ........ on annexed diagram (on diagram No. ........ annexed to ........) is subject to the reservation of ........, which mineral rights are held by Certificate of Mineral Rights No. K ........RM issued in respect of Portion ........ of the farm .........
If only a share in the land is transferred and the mineral reservation was in respect of the whole of the land, it is practice to include the following qualification in the introductory clause, for example:
Said land, a ........ share of which is hereby transferred/held is subject to the reservation of ........ etc.
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