LET'S TALK What you need to know about restrictive title deed conditions
Ownership is the most comprehensive right any person can have in property. It is however a well-recognised principle of property law that ownership does not confer absolute and unlimited entitlement on the owner. Various limitations exist, in the interest of the community and for the benefit of other people.
The limitations can generally be categorised as follows:
- Statutory rights, such as limitations imposed as a result of zoning or environmental legislation.
- Title deed conditions which often complement or duplicate land use and zoning provisions.
- Neighbour law.
- Limited real rights such as servitudes.
We will be taking a look at title deed conditions and how they should be dealt with.
The purpose of title deed conditions is generally to dictate the use to which a property may be put, extent of building works, setback lines and appearance. These are usually imposed when a development is created, be it by way of new township development conditions (imposed by the municipality when approving the township) or conditions imposed when a subdivision is approved. It usually has a purpose to protect the local amenity and character of an area for the benefit of surrounding owners and the general public.
Conditions of title may include:
1) Statutory town planning conditions –
Municipality imposes conditions (E.g. conditions imposed on use of the property or nature of residence)
2) Non-statutory limitations on the use of land – imposed by the original township owner in favour of himself or in favour of each owner in the township. (E.g. requirement to become a member of a Homeowners Association)
In most cases it is easy to determine what conditions apply to a specific erf by merely perusing the title deed. However, if the erf was registered in the Cape Town Deeds Office prior to 1918 then it would be necessary to request the advice of a Conveyancer as all Deeds registered prior to 1918 in the Cape Town Deeds office did not carry forward the previous title deed conditions but instead you had to peruse the original title deed.
Once you have determined that there is a restrictive condition on your title deed you may require the removal of this condition. There are various ways in which the removal will be dealt with. The following provides a brief summary:
- A title deed condition, if imposed in terms of a municipal ordinance on the establishment of a new township, will generally always be such that it is for the benefit of all the owners in the township. Such conditions can only be removed in terms of the Removal of restrictions Act, which requires application either to the provincial government, relevant Municipal Planning Tribunal or to court. An example is when a new use (subdivision) or development is proposed; title deed conditions may restrict or even prevent a development from being implemented. In this instance the owner can apply to have the restrictions amended, suspended or even removed entirely from the title deed. An Attorney will need to approach the High Court on an owner’s behalf, in order to obtain a court order for the expungement (removal) of restrictive title deed conditions.
- Where a condition was not imposed for the benefit of other erven but rather for the benefit of another person, such as a personal servitude, then there is a provision in the Deeds Registries Act that can be followed to remove the condition. In essence, the parties will enter into a notarial agreement to remove the condition.
Please contact our office should you require any advice or assistance regarding the removal of a title deed condition.