SA Affordable Housing May - June 2019 // Issue: 76 | Page 36

LEGAL MATTERS
The Deeds Office information reflected on the Deeds Office
printout is linked to the endorsement in terms of section 46 of
the Deeds Registries Act, 1937, (No47 of 1937) on the township
title showing that the land (mother property) held in terms of
that title has now been laid out into erven, parks and streets in a
separate register under the name of that specific township
(Figure 2).
In this section 46 endorsement in respect of the township
register for Lufhereng Township it shows that the land has been
laid out into erven numbered 1 to 1 031 and 8 parks numbered
1032 to 1 039 in accordance with General Plan SG No
9011/2008. The township owner is therefore now the owner of
the erven as described in this section 46 endorsement, even if
the erven is not listed in separate paragraphs in the township
title for Lufhereng Township
• In this judgment reference is made to the
subdivision of the mother property in the office of
the Registrar of Deeds, KwaZulu-Natal in terms of
the provisions of section 46 of the Deeds Registries
Act, 1937 (No 47 of 1937) which is tantamount to
what we know in Gauteng as the opening of a
township register.
• In paragraph 20 on pages 10 to 11 of this judgment
the court found that it must follow that the owner of
land as defined in section 102 of the Deeds
Registries Act, 1937, (No47 of 1937) in respect of
which a general plan has been registered in terms of
section 46(1) of the Deeds Registries Act, 1937,
(No47 of 1937), must also at the time of such
registration continue to be the owner of each
subdivision or erf, therefore registered. After all,
there is no suggestion that erven, which occurs by
the registration of a general plan, would be
ownerless.
• In paragraph 22 on page 11 of this judgment the
court also confirmed the principle that when section
46(1) of the Deeds Registries Act, 1937, (No47 of
1937) is read with the provisions of section 46(7)
and 43(5)(a), any erf, if alienated as a whole, may be
registered into the name of its new owner without
the need to first obtain a certificate of registered
title in respect of that erf.
It is clear then that an erf held by the township
applicant by virtue of the township title is in fact a
registered erf for the purposes of the Deeds Registries
Act, 1937, (No47 of 1937).
Figure 2: The section 46 endorsement in respect of the township
register for Lufhereng Township.
It further shows that this information was booked in a separate
register under the name Lufhereng, which is in fact the township
register for Lufhereng Township.
In the court case of EM and EM Engineering (Pty) Ltd and the
Kwadukuza Municipality, the Registrar of Deeds and ASK Y
Development Professionals CC, which was delivered on 26 June
2015 in the KwaZulu-Natal Local Division of the High Court, the
following points were raised while determining what constitutes
a registered erf:
• The real issue is if a rates clearance certificate had to be
issued for the mother property (tantamount to the Remaining
Extent of the township in Gauteng) or for the subdivisions
(tantamount to the erven depicted on the General Plan for a
township in Gauteng) with the transfer of an erf from the
township title.
"In the affordable housing
development space, the banks
finance two basic products
known as Plot & Plan and
Turnkey transactions."
34
MAY - JUNE 2019
RESPONSE FROM THE BUILDING
CONTROL DEPARTMENT
When the Building Control Department was approached
with the interpretation of a registered erf (above) sanity
prevailed, and thereafter applications for the approval
of building plans for Res 1 erven were accepted and
processed again without requiring to first register a
Certificate of Registered Title.
However, Business Rule 001/10-03/17 was not
revoked formally. This department still insists on the
submission of a registered Certificate of Registered
Title with building plans for a Res 3 erf before
processing such applications. It does not make sense
because if a Res 1 stand held by a township title is a
registered erf then surely a Res 3 stand held by a
township title must also be a registered erf?
RATES DEPARTMENT ENTERS THE ARENA
In the affordable housing development space, the
banks finance two basic products known as Plot & Plan
and Turnkey transactions and they differ as follows:
• Plot & Plan: the purchaser takes transfer of the
serviced erf and on registration of the transfer and
the linked end-user mortgage bond, construction of
the house commences.
• Turnkey (Delayed Plot & Plan): the purchaser
purchases a serviced erf and building package but
transfer and registration of the linked end-user
mortgage bond is delayed until the construction of
the house is completed.
www.saaffordablehousing.co.za