Cancellation of restrictive conditions

Allen West discusses the cancellation and removal of a restrictive condition with regard to invoking the provisions of section 68(1) or (2) of the Deeds Registries Act, by approaching the Courts, or whether SPLUMA must be utilized. 

There is a doctrine whereby the purchaser (and his successors in title) of an erf from a common vendor (such as a developer) may be entitled to enforce inter se restrictive conditions contained in their respective titles (see Alexander v Johns 1912 AD 431).

To determine whether the owner of erven may enforce the restrictive conditions, our courts have held that there are four requisites, the presence or absence of any one of which would aid in the interpretation of any particular case. However, in every case it would seem that at least the fourth requisite must be present before it can be held that, as between the common vendor and the purchaser of erven, there has been a contract for the benefit of third parties (see Titty’s Bar and Bottle Store v ABC Garage and Others 1974 (4) SA 362 T).

The requirements are as follows:

1. Deprivation of title from the common vendor;
2. That the land for sale was laid out for sale in even subject to conditions consistent with a general scheme development;
3. That the restrictions were intended by the common vendor to be, and actually were, for the benefit of all the lots; and
4. That the owner purchased the land/ section from the common vendor on the understanding that the restrictions were to ensure for the benefit of the other erven included in the general scheme.

From a conveyancing perspective the above doctrine is very important as more often than not one is confronted with a restrictive condition which is a deterrent for the rezoning of the land in question, or which is a stumbling block for the opening of a sectional title register. The question requiring an answer is whether the provisions of section 68(1) or (2) of the Deeds Registries Act 47 of 1937 (“the Act”) can be invoked to have the condition removed, or must the court be approached, or must SPLUMA be utilized to remove the condition in question.

To apply the provisions of section 68 of the Act the personal servitude (restrictive condition) must not be to the benefit of the other erven or sections in the scheme.

A condition (restrictive condition) imposed in terms of a Municipal Ordinance on establishment of a Township will always be to the benefit of all the other owners of the township and cannot be cancelled in terms of section 68. These conditions can only be cancelled, modified or altered by virtue of an order of court or in terms of SPLUMA. Similarly where a condition is created on the subdivision of land by the “developer” providing for the creation of a Home Owners’ Association, and furthermore that the erf cannot be transferred without the consent from such Home Owners’ Association, such condition can also not be cancelled in terms of section 68 of the Act. Developers of sectional title schemes may similarly impose conditions for the benefit of all members of the Body Corporate and will thus be enforceable by the members of the Body Corporate.

The Council may, in terms of SPLUMA, on application of any person, by proclamation in the Official Gazette, alter, suspend or remove any restrictive condition registered against the title deed of land which relates to:

• The subdivision of the land;
• The purpose for which the land may be used including a restriction preventing or prejudicing the establishment or development of a township thereon; or
• The requirements to be complied with or to be observed in connection with the erection of buildings or the use of the land.

Before Council can do so it must be satisfied that it is inter alia desirable to do so in the interest of the establishment or development of a township, or in the interest of any area, or in the public interest.

Conclusion
Before anticipating the cancellation of a restrictive condition one must firstly determine whether the condition was not initially imposed as a stipulatio alteri, in which case either an order of court will have to be sought or SPLUMA applied to cancel such condition.

Erroneous removal of conditions
Where a condition was erroneously cancelled in terms of section 68(1) of the Act instead of the applicable legislation, the provisions of section 4(1) (b) must be applied to revive the condition and the relevant legislation applied for the removal thereof (see RCR 19 of 2012).

Should you require more information in this regard, kindly contact me.

Allen West
Tonkin Clacey Pretoria
012 346 1278