Introduction
Regulation 73 of the Deeds Registries Act, 47 of 1937, provides the procedure for the identification of servitudes on the registration thereof. Unless a servitude is clearly identified, such servitude will be voidable due to vagueness and could lead to disputes and should not be registerable in a deeds registry.
The identification can be divided into the following categories, each of which will now be looked at more closely:
Servitude Diagrams
When registering a servitude, albeit personal or praedial, such servitude may be depicted on a servitude diagram, unless the servitude is in respect of the whole of a defined portion of the land, in which case the diagram of the land will also serve as the diagram to identify the servitude. The servitude diagram will be attached to the servitude and the figures reflected therein will be disclosed in the description of such servitude.
Servitude of Uniform Width
A diagram depicting a servitude may be dispensed with, if such servitude can be described and identified with a uniform width, or a feature at a specified distance from and parallel to a surveyed line shown on a registered diagram.
Where a servitude can clearly be identified for example;
“A servitude of right of way, 2 metres wide all along and parallel to the northern boundary of Erf 383 Noupoort, as indicated by the figure “a b”
the servitude diagram may be dispensed with.
Discretion of Surveyor General
A further exception to the general rule of the lodging of a servitude diagram to identify a servitude is where the Surveyor General is satisfied that the servitude can be plotted on the diagram of the land affected, i.e. the servient tenement.
When describing the servitude, the reference to the figures on the diagram of the servient tenement will be used to identify the servitude.
Represented on General Plan
Where a servitude is depicted on a general plan, a separate servitude diagram will not be necessary to identify such servitude. The figures as represented on the general plan may be used for identification purposes.
Servitude in General Terms
This method of identifying a servitude is not ideal, however permissible. When a servitude is registered and the exact route is not as yet determined, the servitude may be worded along the following lines;
“Subject to a right of way over Erf 832 Mooikloof measuring 1 ha, which exact route will be determined between the owner of the dominant and servient tenement properties at a later stage.”
It is quite clear that this manner of describing the servitude, although fairly cost effective, does not provide legal certainty and could lead to future disputes.
The further downside of registering a servitude in general terms is that, if the land over which the servitude is being registered is agricultural land, then the consent from the Minister in terms of the Subdivision of Agricultural Land Act 70 of 1970 will have to be lodged.
Furthermore, the provisions of section 65(3) and 75(3) of the Deeds Registries Act, 47 of 1937, may have to be complied with, in that the consent of the holders of all other real rights registered over the servient tenement will have to consent to the registration of the said servitude unless it can be proved that this servitude does or will not infringe on the rights of the said servitude holders.
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
