Registrars' Conference Resolutions - Centre for Conveyancing ...

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18Chapter 6 - ServitudesParagraph 3.3Types of personal servitudesDiagrams for habitatio: regulation 73(2)Question Is it always necessary for the submission of a diagram for the registration of ahabitatio, given the fact that a habitatio can only be in respect of a dwelling onthe land?Resolution Yes, see the provisions of regulation 73(2) of Act No. 47 of 1937. Also seeKidson vs Jimspeed Enterprises, Case No. 3857408 unreported.(RCR 21 of 1961 is withdrawn) – (RCR29/2012).Paragraph 3.5Creation of personal servitudesAThe General RuleRCR 24/2005: Unilateral notarial deeds of cession of personal servitudeQuestion Should RCR 24 of 2005 no be withdrawn, given the fact that regulation 61(2) ofthe Deeds Registries Act has been amended? A unilateral cession is nowpermissible, provided no burden is placed on the cessionary.Resolution No. RCR 24 of 2005 is hereby confirmed. Regulation 61(2) of the Act is in theprocess of being amended to only permit unilateral cession of personalservitudes as provided for in section 66 15 of the Deeds Registries Act – (RCR12/2010).Creation of servitudes on or over public landQuestion The creation of a servitude, being the transfer of rights over a public street, couldwell be a deprivation of the public’s rights in any street. Notwithstanding the factthat it may not affect the enjoyment of its rights, it is still a transfer of rights to aparty other than the general public.a) Does the local authority have the power to act on behalf of the generalpublic?b) What public participation is necessary when their rights are impinged?Resolution a) No, it is not necessary for the general public to be party to the agreement.The Premier of the Province must consent on behalf of the general public,and not the municipality. Alternatively a court order may be obtained – (seesection 65(1) of Act 47 of 1937)b) None. However, the publication notice in the Government Gazette for publiccomment provides the necessary interaction – (RCR87/2010).BExceptions to the general ruleSection 65 - interpretation of “savings clause”Question How does conference interpret the savings clause: “save as provided for in any15Section 66 only provides for the unilateral cessions of a usufruct, usus and habitatio, where no burden is placedon the cessionary.February 2013Self-Study Deeds Course
other law”, in section 65 of the Deeds Registries Act? Does this mean that aparticular piece of legislation must specifically oust the provisions of the DeedsRegistries Act when it relates to a creation of personal servitudes? Alternatively,that if the piece of legislation allows an authority to impose conditions, theprovision of section 65 need not be adhered to?Resolution No. The general rule is that a personal servitude must be created by theregistration of a notarial deed. However, the provisions of section 65 need notbe adhered to only where another law provides otherwise - (RCR14/2009). 16Cession of a personal servitudeQuestionMust a cession of a personal servitude of usufruct, usus or habitatio, when suchcession of the personal servitude is in favour of the owner of the landencumbered thereby, be done by an unilateral notarial deed?Resolution Yes - (RCR24/2005).19COther exceptions to the general ruleTransfer Duty / Right of way in favour of general publicQuestion Is transfer duty payable and by whom when a right of way is created in favour ofthe general public?Resolution No transfer duty is payable, however an exemption certificate must be lodged -(RCR35/2006).Section 2 of the Transfer Duty Act No. 40 of 1949Question Must a transfer duty receipt or exemption from transfer duty be called for when anegative personal servitude is created in the power of attorney, and dulyaccepted?Resolution Yes, it is a transaction as per the definition of ‘transaction’ in the Transfer DutyAct No. 40 of 1949, unless it is exempt for any other reason – (RCR43/2012).Paragraph 3.6Registration of personal servitudesSection 68(1) - Waiver of personal servitudesScenario The application of section 68(1) when the holder of a personal servitude waivesor renounces his/her right is questioned. The mere fact that the title deed of thereal right need not be lodged (that is the servitude title), leaves much to bedesired as same can be used for a pledge, etc and even in the case of a leaseagreement.Resolution Section 68(1) provides that the title deed of the servitude be lodged only if it isavailable. The deeds registry copy should be endorsed and the necessarycaveat noted - (RCR19/2006).16“Another law” includes an Ordinance. If conditions are created in terms of an ordinance, they do not have to becreated in the power of attorney, for example township establishment conditions.February 2013Self-Study Deeds Course
Page 2 and 3: Rates Clearance Certificates for Tr
Page 4 and 5: Registries Act for the execution of
Page 6 and 7: Abbreviation of registration number
Page 8 and 9: of the Subdivision of Agricultural
Page 10 and 11: Restriction on alienationQuestion G
Page 12 and 13: 12Chapter 5 - Power of attorneyPara
Page 14 and 15: Question Where the first page of a
Page 16 and 17: General Power of Attorneys - Destro
Page 20 and 21: Lapsing of personal servitude by me
Page 22 and 23: 22Resolutionlodgement. Must approva
Page 24 and 25: 242/2008 must be amplified to state
Page 26 and 27: 26executor of the estate or must it
Page 28 and 29: 28Paragraph 6.1Section 45(1) endors
Page 30 and 31: Resolution Yes, this is tantamount
Page 32 and 33: Waiver of limited interestQuestionW
Page 34 and 35: 34Chapter 9 - Certificates of regis
Page 36 and 37: 36these circumstances.Paragraph 9 C
Page 38 and 39: 38Chapter 10 - Township establishme
Page 40 and 41: 40Chapter 11 - EndorsementsParagrap
Page 42 and 43: RCR 10 of 2009: Section 4(1)(b)Ques
Page 44 and 45: 44property separately or on the agg
Page 46 and 47: 46Paragraph 13Section 68(1) endorse
Page 48 and 49: 48Paragraph 15Section 93(1) endorse
Page 50 and 51: call for the consent of the “non-
Page 52 and 53: 52Chapter 14 - Mortgage bondsParagr
Page 54 and 55: Question Regulation 39(1) provides
Page 56 and 57: 5616 - MiscellaneousSection 6: Canc
Page 58 and 59: Trust deeds filed and registered in
Page 60 and 61: 60Resolutionb) Is it obligatory for
Page 62 and 63: 6239/2011).Land Claim Caveat and Bo
Page 64 and 65: Section 14(3): Amendment of Section
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68certificate with the cession of a
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70(RCR63/2011).RCR 45 of 2003 and R
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Extension of a section onto adjoini
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section 25-right has been issued. H
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76which time period has not lapsed)
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Should reference that such right mu
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section 25(4) will lead to absurdit
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Reference to ‘EUA’ without spec
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84forming part of the transaction,
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86Sectional title scheme opened on
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same rights they would have had, ha
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As once all the buildings are destr
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92still be to the avail of the deve
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94QuestionResolutionA Certificate o
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