LEGAL MATTERS
SPONSORED BY STBB
The sale and transfer of the whole , portion or remainder of a township
By Gert Minnaar
When a township applicant completes the township establishment process until the township is declared an approved township , he can finally reap the richly deserved reward for this strenuous effort by marketing and selling the stands in this township which then culminates when the stands are transferred into the name of the purchasers .
The township owner can either dispose of the stands directly to the purchasers , or as it quite often happens in large housing projects like Lufhereng , Savanna City and Leeuwpoort with affordable housing components , enter into a land availability agreement with a contractor . The contractor then markets and sells the stands on behalf of the township owner on condition that the contractor enters into a building agreement with the purchaser to construct a house for the purchaser on that stand .
PROHIBITION AGAINST THE MARKETING AND SELLING OF STANDS IN A NEW TOWNSHIP
Prior to the introduction of the Spatial Planning and Land Use Management Act , 2013 ( No 16 of 2013 ) on 1 July 2015 most of the townships which were established in the Gauteng Province , Mpumalanga Province , Limpopo Province and North West Province were established in terms of the Town- Planning and Townships Ordinance , 1986 ( Ordinance No 15 of 1986 ).
Section 67 ( 1 ) of the Town-Planning and Townships Ordinance , 1986 stated that , subject to the provisions of Section 70 , the township applicant or its authorised agents were not allowed to enter into sale or option agreements to dispose of the stands until the township is declared an approved township in the relevant provincial gazette .
This meant that , if the township applicant did not make application in terms of Section 70 of the Town-Planning and Townships Ordinance , 1986 for the written consent to enter into sale or option agreements prior to the publication of the proclamation notice for the township , that it was not possible to market these stands to the public lawfully .
Similar restrictions regarding the marketing and selling of stands in an unproclaimed township were carried forward to the municipalities ’ municipal planning by-laws which were introduced in terms of the Spatial Planning and Land Use Management Act , 2013 .
INSTALLATION OF SERVICES FOR THE STANDS BEFORE IT CAN BE TRANSFERRED
The public enjoys further protection against unscrupulous private township developers in the sense that the sold stands may not be transferred to the purchasers until the municipality is satisfied that adequate services for the stands to be transferred are or will be available within a period of three ( 3 ) months from the date on which the municipality issued a service certificate in terms of Section 82 ( 1 )( b )( ii )( cc ) of the Town-Planning and Townships Ordinance , 1986 :
( cc ) the local authority within whose area of jurisdiction the township is situated has certified that it will , within a period of 3 months from date of the certificate , be able to provide the erf with such services as it may deem necessary and that it is prepared to consider an application for the approval of a building plan in respect of the erf .
Section 113 ( 1 )( c ) of the Town-Planning and Townships Ordinance , 1986 has a similar provision regarding townships which were established by municipalities .
As in the case of the marketing and selling of stands similar restrictions were carried forward to the municipalities ’ municipal planning by-laws which were introduced in terms of the Spatial Planning and Land Use Management Act , 2013 .
THE ROAD LESS TRAVELLED
A township owner is not obliged to only dispose of the serviced stands in his township , there is a further prospect of selling the whole of the township , portion of the township , the remaining extent of the township or a share in in the whole of such land .
Section 47 of the Deeds Registries Act , 1937 ( No 47 of 1937 ) states that the owner of land in respect of which a township register has been opened may transfer by one deed , the whole or any portion of such land or a share in the whole of such land .
47 . Transfer of township or portion thereof The owner of land in respect of which a register has been opened under section forty-six may transfer , by one deed , the whole or any portion of such land or a share in the whole of such land : Provided that –
( a ) if a portion only of the land is sought to be transferred – i . the transfer shall be passed in accordance with a diagram ( to be annexed to such deed ) from which shall be excluded all erven on the land represented thereon which have already been transferred , and on which the total area of such ii .
transferred erven shall be indicated ; the boundaries of such portion shall coincide with one or more of the lines of division shown on the general plan and shall not intersect any of the erven shown thereon ;
( b ) if the remainder of the land is sought to be transferred or mortgaged or otherwise dealt with there shall be produced to the registrar a certificate of remainder signed by the surveyor-general ; and [ Para ( b ) amended by s 21 of Act 43 of 1962 .]
( c ) the deed of transfer shall disclose that the land conveyed thereby has been laid out as a township or is a portion of
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