For time immemorial registrars of deeds have been registering notarial tie agreements which have the status of a personal servitude, and are capable of being registered under the provisions of section 65 of the Deeds Registries Act 47 of 1937.
The notarial tie agreement must be entered into between the owner or owners of the land being notarially tied and the person enforcing the tie agreement. The enforcer could be the local authority, bank or any person or entity who would derive benefit from the properties being tied.
In terms of RCR 17 of 1961 and confirmed by RCR 1 of 1966 the registrars of deeds resolved that it is possible to tie properties where such properties are held by different owners. It is thus not necessary that the properties being tied have to be owned by the same person.
Where two or more properties are tied, the bondholder of any bond registered against any of the properties, forming the subject of the agreement, must consent to the registration of the tie agreement, free from the bond (see section 65(3) of the Act).
Subject of Tie Agreement
In terms of RCR 44 of 2010, it is not permissible to register a notarial tie agreement in respect of a long term lease agreement and land, in order that the land and the lease agreement cannot be separately be dealt with.
The properties as already mentioned do not have to be owned by the same owner and can be situated in different property registers, administrative districts, Provinces, etc.
Operative Clause of the Agreement
As with all notarially prepared agreements there is no hard and fast rule as to the exact wording, however, the following wording merely serves as a guideline:
“That the owner of the above referred to properties and the City Council of Tshwane hereby agree that the said properties shall be tied together and be regarded as one property for all intents and purposes.”
Any ancillary conditions to the agreement must also be contained in the notarial deed.
Certificates of Consolidated Title and Tie Conditions
Where two pieces of land are consolidated and the components are subject to a notarial tie agreement, the condition must be perpetuated in the certificate of consolidated title and the registrar of deeds will endorse the certificate of consolidated title as to the lapsing of the condition. However, the enforcer of the tie condition must lodge a consent to the issuing of the certificate of consolidated title and the lapsing of the tie agreement (see RCR 21 of 2008).
Registration of Mortgage Bond
Where two or more properties are notarially tied, the separate entities cannot serve as security under the mortgage bond. All the properties forming the subject of the agreement must serve as security under the bond.
Untying of Properties
Should the enforcer no longer wish to enforce the notarial tie agreement, such agreement can be cancelled by virtue of a bilateral notarial agreement entered into between the owner(s) of the land and the enforcer of the condition, as provided for in section 68(2) of the Act. Alternatively, the enforcer can prove unilaterally his waiver of the condition, in which case the provisions of section 68(1) can be invoked to cancel the condition.
For more information please do not hesitate to contact me
TONKIN CLACEY PRETORIA
012 346 1278