LEGAL MATTERS
SPONSORED BY STBB
Cancellation of title conditions imposed in terms of the Advertising on Roads and Ribbon Development Act
By Gert Minnaar
The following title conditions , imposed in terms of the Advertising on Roads and Ribbon Development Act , 1940 ( No 21 of 1940 ), are sometimes encountered in the title deeds for land , close to or abutting on a provincial road , on which a township applicant wishes to establish a township :
The following title conditions , imposed in terms of the Advertising on Roads and Ribbon Development Act , 1940 ( No 21 of 1940 ), are sometimes encountered in the title deeds for land , close to or abutting on a provincial road , on which a township applicant wishes to establish a township : “ The property hereby transferred is subject to the following conditions imposed by the Controlling Authority under Act No 21 of 1940 :
Except with the written approval of the Administrator as Controlling Authority as defined in Act 21 of 1940 : i . The land shall be used for residential and agricultural purpose . The number of buildings on the land , or on any duly approved subdivision thereof , shall not exceed one residence together with such outbuildings as are ordinarily required to be used in connection therewith and such further buildings and structures as may be required for purpose of agriculture . ii . No store or place of business or industry whatsoever may be opened of conducted on the land . iii . No building or any structure whatsoever may be erected within a distance of 94.46 metres from the centre line of a public road .”
THE NATURE OF THESE TITLE CONDITIONS
These title conditions place severe restrictions on the use of such land because it prescribes that the land shall be used for residential and agricultural purposes , limit the number of dwelling houses which can be erected , prohibit the conducting of a store or place of business and set the distance from a public road for the erection of a building or structure .
These constraints are obviously incompatible with the intended development of the land as a township and will require of the township applicant to obtain the written consent of the Controlling Authority , as defined in Act 21 of 1940 , for the removal of these title conditions from the title deed for the land .
DISPOSAL OF THE TITLE CONDITIONS IMPOSED IN TERMS OF ACT 21 OF 1940
The conveyancer tasked with the issuing of the conveyancer ’ s certificate for township establishment purposes for the land is obliged to point out that these title conditions restrict the use of the affected land , are not compatible with the proposed development of the land into a township and must be cancelled simultaneously with the opening of the township register for the proposed township .
The conditions of establishment for the township shall then , as part of the pre-proclamation conditions of establishment , indicate that the township applicant shall at its own expense cause these restrictive conditions and / or servitudes to be cancelled or the township area to be freed there from .
The Deeds Office , as part of the process to open the township register for the township , will check if this pre-proclamation condition of establishment has been complied with before allowing this township register to be opened .
SECTION 11 ( 8 )( a ) OF ACT 21 OF 1940
The cancellation of these title conditions requires a request or application to the Controlling Authority as defined in Act 21 of 1940 to approve the cancellation of these title conditions . This application is considered by the Controlling Authority and if successful , the Controlling Authority issues a letter to the Registrar of Deeds stating that the cancellation of these title conditions were approved and that the cancellation will take effect from the date on which the township is declared an approved township in the Provincial Gazette .
This written consent by the Controlling Authority in terms of Section 11 ( 8 )( a ) of Act 21 of 1940 , together with the written application by the registered owner of the land in terms of Section 11 ( 9 ) of Act 21 of 1940 , are then submitted to the Deeds Office as part of the batch of documents for the opening of the township register , in compliance with the specific preproclamation condition of establishment .
The Deeds Office then endorses the township title regarding the cancellation of these title conditions and the township is then free from these title conditions .
THE CONTROLLING AUTHORITY
The definition in Act 21 of 1940 states that the ‘ Controlling Authority ’ means , in relation to a road , the Administrator concerned . This meant that in the Gauteng Province the Administrator , and subsequently the Premier from 1994 until 1 July 2015 , was the Controlling Authority .
The applications to get these title conditions cancelled were submitted to the Department of Economic Development of the Gauteng Provincial Government . This department considered the applications and if successful , issued a letter to the Registrar
12 SEPTEMBER - OCTOBER 2021 SAAffordHousing saaffordablehousingmag SA Affordable Housing www . saaffordablehousing . co . za