Regulation 73(2) of the Deeds Registries Act 47 of 1937 (the Act) provides that a diagram is a requirement for deeds creating or defining servitudes and real rights, subject to certain exceptions which do not merit a discussion for purposes of this article.
The creation and registration of a right of habitatio, defined as:
“conferring upon its holder the right to dwell in the house of another together with his family without detriment to the substance of the property “ (Voet 781).
The word house in the above definition requires closer scrutiny from a registration point of view, as well as legal certainty to the holder of the habitatio. A habitatio can only be registered in respect of a dwelling and not in respect of the land on which the dwelling has been erected.
It is submitted that one cannot register a habitatio without the procurement of a diagram of that portion of the land on which the dwelling is erected, unless the dwelling is a sectional title unit as the sectional plan will suffice for purposes of regulation 73(2) of the Act. Obviously where the habitatio is in respect of a portion of a section, an additional diagram will be required for legal certainty purposes.
Often a habitatio is registered in respect of a “granny flat” and requires a diagram to provide the holder with legal certainty as to his/her right.
Jones, Conveyancing in South Africa Fourth Edition on page 218 avers that a diagram can be dispensed with where the conveyancer certifies that the building or opstal is the only building on the land. This practice is not sound practice as further buildings can be erected on the land, or the building might even be destroyed and re-erected.
As far back as 1951 the matter was deliberated by the Registrars at their annual conference, and it was resolved as follows:
“As the law is at present the registration of a habitatio affecting areas other than the ground floor of a building (e.g. the back room on the ground floor of the building) is not feasible except on production of a diagram of the land effected.”
This resolution, it is submitted, is not based on sound footing, given the fact that subsequent to the registration of the habitatio, the building might be extended or additional buildings built, which will affect the security of the right. It is opined that a diagram will always be a necessity for the creation and registration of a right of habitatio.
Interesting to also note that in terms of CRC 3 of 1995 the registration of a habitatio over agricultural land for a period longer than 10 years, or the natural lifetime of the holder, requires the consent from the Minister in terms of section 6A of the Subdivision of Agricultural Land Act 70 of 1970.
Conclusion
From a conveyancing perspective it would be a sound practice to always procure a diagram for the creation and registration of an habitatio. The question was posed to the Registrars at their annual Conference, and it was resolved that, given the provisions of regulation 73(2) and the unreported case of Kidson v Jimspeed Enterprises (Case 3857/08) a diagram will always have to be lodged (RCR 29 of 2012).
