Conference Resolutions - Centre for Conveyancing Practice

B Exceptions to the general rule
Section 65 - interpretation of “savings clause”
Question How does conference interpret the savings clause: “save as provided for in any
other law”, in section 65 of the Deeds Registries Act? Does this mean that a
particular piece of legislation must specifically oust the provisions of the Deeds
Registries Act when it relates to a creation of personal servitudes? Alternatively,
that if the piece of legislation allows an authority to impose conditions, the
provision of section 65 need not be adhered to?
Resolution No. The general rule is that a personal servitude must be created by the
registration of a notarial deed. However, the provisions of section 65 need not
be adhered to only where another law provides otherwise - (RCR14/2009). 14
Cession of a personal servitude
Question Must a cession of a personal servitude of usufruct, usus or habitatio, when such
cession of the personal servitude is in favour of the owner of the land
encumbered thereby, be done by an unilateral notarial deed?
Resolution Yes - (RCR24/2005).
C Other exceptions to the general rule
Transfer Duty / Right of way in favour of general public
Question Is transfer duty payable and by whom when a right of way is created in favour of
the general public?
Resolution No transfer duty is payable, however an exemption certificate must be lodged -
(RCR35/2006).
Paragraph 3.6 Registration of personal servitudes
Section 68(1) - Waiver of personal servitudes
Scenario The application of section 68(1) when the holder of a personal servitude waives
or renounces his/her right is questioned. The mere fact that the title deed of the
real right need not be lodged (that is the servitude title), leaves much to be
desired as same can be used for a pledge, etc and even in the case of a lease
agreement.
Resolution Section 68(1) provides that the title deed of the servitude be lodged only if it is
available. The deeds registry copy should be endorsed and the necessary
caveat noted - (RCR19/2006).
14 “Another law” includes an Ordinance. If conditions are created in terms of an ordinance, they do not have to be
created in the power of attorney, for example township establishment conditions.
February 2012 Self-Study Deeds Course
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