Registrars' Conference Resolutions - Centre for Conveyancing ...

Lapsing of personal servitude by mergerQuestionShould the owner of land comply with the provisions of section 68(1) of theDeeds Registries Act where a personal servitude (usufruct) lapses by merger ordoes conference confirm RCR29(1)/1966?Resolution The provisions of section 68 should not be invoked. Registrar’s ConferenceResolution 29(1)/1966 is confirmed - (RCR3/2008). 1720Usufruct for a specific timeQuestion Is the following usufruct registrable? “Subject to a usufruct in favour of thesurviving spouse for a period of one year less than the life expectancy of thesurviving spouse...”?Resolution Yes, it is registrable. The period can be determined in terms of the tablescontained in the Estate Duty Act 45 of 1955 - (RCR42/2009).Paragraph 3.6Mortgage bonds and personal servitudesConsent in terms of section 65(3) re Eskom and Rand Water BoardQuestion Are servitudes to be registered in favour of Eskom and the Rand Water Boardexempt from having to obtain the consent of bond holders and holders of realrights as referred to in section 65(3) of Act No. 47 of 1937?Resolution No, Eskom and the Rand Water Board are not exempt from the provisions ofsection 65(3) – (RCR18/2012).Paragraph 3.8Transfer and mortgage of land with personal servitude thereonSale in insolvency and personal servitudesScenario Regarding the disposal by a trustee of an insolvent estate of property subject toa personal servitude.Resolution Where immovable property which is subject to a personal servitude is sold ininsolvency, such immovable property must be transferred subject to suchpersonal servitude. However, should the holder of the personal servitudedispose of his/her rights together with the trustee, the provisions of section 69(1)may be invoked. Where a waiver of preference by the holder of the personalservitude provides that the immovable property may be sold free from thepersonal servitude, the provisions of section 68(1) must be complied with -(RCR3/2006).Paragraph 3.9Joint transactions by fiduciary and fideicommissaryScenarioAn order of court was granted to establish the fideicommissaries and to sell the17Merger only takes place from the moment that the registered owner of the property also becomes the holder of thepersonal servitude or vice versa, thus on date of registration of the transfer or cession. It would therefore beincorrect to omit the servitude from the new deed of transfer at the time of transfer. It must be embodied in thedeed of transfer and simultaneously with registration, or thereafter, the deed of transfer must be endorsed that theservitude has lapsed through merger. No application is needed.February 2013Self-Study Deeds Course