SA Affordable Housing March/April 2021 | Page 21

LEGAL MATTERS SPONSORED BY STBB
THE TITLE CONDITIONS APPLICABLE IN RESPECT OF THE RAW LAND
The title conditions noted against the title deed for the raw land can be divided into two categories :
• title conditions reflected in the title deed as numbered paragraphs in the text of the title deed .
• title conditions reflected as endorsements in chronological order made by the officials in the Deeds Office on the blank pages of the title deed .
44A The person signing the preparation certificates prescribed by regulations 43 and 44 ( 1 ) of the Regulations accepts , in terms of section 15A ( 1 ) and ( 2 ) of the Act , to the extent provided for in this regulation , responsibility for the correctness of the undermentioned facts stated in the deeds or documents concerned or which are relevant in connection with the registration or filing thereof , namely : ( a ) That all copies of the deeds or documents intended for execution and / or registration are identical at the date of lodgment ; ( b ) that , in the case of a deed of transfer or certificate of title to land , all the applicable conditions of title contained in or endorsed upon the owner ' s copy of the title deed , together with any applicable proclaimed township conditions have been correctly brought forward in that deed of transfer or certificate of title to land ;
Although conveyancers assume responsibility for the correctness of the title conditions in the title deeds in terms of Regulation 44A ( b ) of the Deeds Registries Act , 1937 ( No 47 of 1937 ) and the examiners at the Deeds Office are obliged in terms of section 3 ( 1 )( b ) of the same Act to examine the title deeds for correctness before allowing the registration thereof , it happens occasionally that the following mistakes slip through :
• the incorrect title conditions are carried forward to a title deed .
• title conditions which are supposed to be carried forward to a title deed , are omitted .
• servitudes are missing on the small-scale diagram for the raw land and are subsequently not carried forward to the title deeds , which will require the cadastral information to be updated first before the land records can be updated .
THE DISPOSAL OF THE TITLE CONDITIONS FOR TOWNSHIP ESTABLISHMENT PURPOSES
The identification of all the relevant and valid title conditions which impact on the raw land is crucial because each of these title conditions must be addressed and dealt with for the purpose of designing the new township .
There are two main categories of title conditions which must be disposed of :
• servitudes and title conditions which affect the land because of its situation .
• servitudes and title conditions which do not affect the land because of its situation .
The servitudes which affect the township through its situation may affect the whole of the township , certain stands in the township only , or stands and streets in the township . The Registrar of Deeds in Pretoria issued a circular , Registrar ’ s Circular 2 of 2019 to provide clarity and guidelines for the procedure to be followed for the establishment of townships , with paragraph 5.3.6 setting out how the title conditions must be disposed of for township establishment purposes .
The conditions of establishment for the new township have a section which deals specifically with the disposal of title conditions , and when the General Plan and small-scale diagrams for the township are approved by the Surveyor-General the information in here must correlate with the title conditions in the township title and the servitude notes on the General Plan and small-scale diagrams . Any discrepancies here will result in the rejection of the deeds for the opening of the township register until the mistakes have been rectified .
CONCLUSION
If any mistakes regarding the correct title conditions or disposal of these title conditions are discovered only at the late stage where the township register must be opened it may have catastrophic consequences if the layout of the township was based on the wrong information collected from the Deeds Office records , or if this information was not verified by the conveyancer when issuing the conveyancer ’ s certificate .
The layout of the township will have to reconsidered and the records at the Deeds Office , and the Surveyor-General where applicable , must be updated to reflect the correct servitudes and title conditions applicable to the title deed for the raw land .
This means that a mere examination of the current title deed is not adequate to determine the correct title conditions applicable in respect of the raw land on which the township will be established . An appropriate investigation into the cadastral and land records for the raw land is indispensable to avoid nasty surprises with the opening of the township register , where the value which the developer added to this land by getting the township approved by the municipality , is unlocked .
STBB offers a variety of legal services where our expertise and friendly approach allows us to deal with every legal matter in an effective and efficient manner ensuring a pleasant experience for our clients .
In the property sector we cover :
• Property law : We offer benchmark services for both retail and development property transactions . We are reputed for our teams of seasoned property law practitioners who share an extensive set of skills to smoothly address every aspect of property law and land development transactions .
• Local Government , Planning , Development and Environmental law : Our Development Law Unit has nine specialists addressing development requirements in the fields of planning law , environmental law , construction law , renewable energy law and local government law . The Unit partners with land developers to function as a vital watchdog and one-stop-shop for all legal requirements of land development projects , including low cost housing projects .
For more information related to the information published , please contact Gert Minnaar at gertm @ stbb . co . za or visit our website www . stbb . co . za to view contact information for your nearest branch .
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