Question: Is there a timeframe within which a notarially executed praedial servitude must be lodged in the deeds registry for registration?
Answer: Unlike the position with notarial bonds and marriage contracts, there is no time limit for the registration against the title deeds of the properties of a praedial servitude which has been notarially executed. The same rule applies, incidentally, to most other notarially executed deeds, such as notarial cessions of exclusive use areas, notarial leases, and many other notarial documents.
That said, it therefore matters not whether the servitude was notarially executed 10 days ago, or 10 years ago – it can still be registered against the title deeds in the deeds registry.
But there can, of course, be exceptions to this.
Registration in the deeds registry could depend on the parties to the notarial deed still being the registered owners of the servient and dominant properties on date of lodgement and registration, and the terms and conditions of the servitude as well. The servitude might have been intended for a limited period of time, which might well have already lapsed.
And if ownership of either the servient or dominant tenement has changed since the servitude was executed, then it can clearly no longer be registered. Or if the either the servient or dominant tenement (or both of them) in the notarially executed servitude have in the meantime been consolidated with another property, just to illustrate the point with one example, then clearly the servitude can no longer be registered, as neither the servient tenement nor the dominant tenement would be in existence at the time of lodgement – as they would form part of a different cadastral entity. At best the servitude it would need to be re-executed over, or in favour of, a component of such a consolidated property.
Similar considerations might apply where either one or both of the affected properties have been subdivided since execution of the notarial deed.
And if, in the meantime, other encumbrances have been registered over the servient tenement, then this could also be a potential obstacle, as the servitude might now conflict with prior registered servitudes, or the consent of the holders bonds registered over the servient tenement since the servitude was executed might have to be obtained, and those bond holders might well object.
On the other hand, it must be always be understood that an executed servitude which has not been registered is still binding inter-partes – provided that both parties are still the registered owners of the respective properties. The sole purpose of registration in a deeds registry is to give notice to, and to bind, third parties – including successors in title.
So the best advice one can give is – register your servitude as soon as possible against the title deeds of the affected properties.
About the author:
John Christie (University of Natal: B.A; B.Com, LLB)
Director of J Leslie Smith & Company Incorporated - Pietermaritzburg
Admitted Attorney, Conveyancer and Notary Public. Admitted as an Attorney in 1981, as a Conveyancer in 1982, and as a Notary Public in 1996 and have since 1982 and 1996 practiced almost exclusively as a Conveyancer and Notary Public respectively.
Author of Conveyancing Practice Guide: 3rd Edition; Published by LexisNexis in 2008.
Former member of the Pietermaritzburg Legal Circle and ex officio Deeds Office liaison officer.
Current lecturer for Conveyancing and Notarial Practice for Legal Education and Development for the Law Society of South Africa and have been lecturing for approximately 20 years.
Elected Member of the Council of the KwaZulu-Natal Law Society since 2009 and still serving.
Vice President - KwaZulu-Natal Law Society 2017/2018.
Current examiner for Conveyancing and Notarial Practice for the KwaZulu-Natal Law Society appointed by the Judge Present of the KwaZulu-Natal High Court.
Present chairman of the Property Law Committee of the KwaZulu-Natal Law Society, and member of the Property Law Committee of the Law Society of South Africa.
Delegate to the Annual Registrars Conference representing the Law Society of South Africa and the KwaZulu-Natal Law Societies respectively in 2010 and 2012, 2015 and 2016.
Alternate member of the Deeds Registries Regulations Board, and the Sectional Titles Regulations Board for 2018.
Member of the Ethics Committee of the Law Society of South Africa
Appointed in October 2016/January 2017 by the Minister of Rural Development and Land Reform to the panel for the interviewing of applicants for appointment as Registrars of Deeds and Deputy Registrars of Deeds.