What Property Owners Need To Know About Their Title Deed Conditions

1. I have a Title Deed condition restricting my neighbour from building a double story dwelling on his property without my, or my successors-in title's written consent.  Can he get around this somehow?

The Removal of Restrictions Act 84 of 1967 would allow your neighbour to apply to have the relevant restriction amended, relaxed, suspended or permanently removed if it would be in the interests of the area.  The provincial government is the competent authority for deciding on such applications and the local authority processes the application on the local government's behalf.  As a result of anticipated objections to the potential relaxation of the title condition, it may well be necessary for your neighbour to approach a Court for determination.

2. I am attending to a renovation on my property and our architect has sent the plans to the building council.  Where exactly do the plans go, i.e. what department and who is in charge thereof? 

The plans are submitted to and approved by the officials in the Building Development Management Branch (or one of its district offices) in the City of Cape Town Municipality.  It is checked for compliance with the minimum construction standards and specifications as laid down in the National Building Regulations and Building Standards Act ('the Building Act').

The branch is also tasked with inspecting building work during construction to ensure compliance with the approved plans and related regulations. In terms of the Building Act, plans for building works smaller than 500m² the local authority must revert within 30 days, and for building works larger than 500m², a 60-day period is determined.

3. My neighbour is building on part of his property, which is going to obstruct my view of the mountain.  Surely, my right to this view is protected somehow?

No.  Our law does not acknowledge the existence of a right to a view operating to prohibit neighbouring owners from erecting building works that spoils another neighbour's scenic views.  Instead, our law endorses the common law position that an owner of land is free to do on his land whatever he chooses to do, provided he does not act illegally and his actions are reasonable. However, the issue of whether approval of building plans (which may obstruct another's sea views) may have an effect on the value of neighbouring properties, does have a bearing on whether the plans will be approved by the local authority in the first place.

4. My neighbour is building right up to the boundary line of his property.  Is this allowed? 

This would all depend on the particular zoning, the building lines of the property, any specific title deed conditions and if application for relaxation of the building lines has been applied for and approved. 

5. I intend to do fairly major internal renovations at my property involving bringing down at least four internal walls, building a fireplace and a brand new kitchen with new plumbing and electrical points.  Do building plans for interior renovations have to be approved by council?

A fireplace with a chimney, as well as any renovations that add new elements to the fundamental aspect of the building or property - like different roofing tiles, or a removal of a wall that may change the building's structure will require approved building plans.  Internally altering your house or shop/office will require building approval as the alterations has a structural component.  These include removing or rebuilding a substantial part of a wall, underpinning a building, or reroofing with a different type of material, such as thatching, heavier tiles, etc.  New or extended drainage or plumbing will too require approved building plans.

6. When you have a look at your title deed to check whether there are any restrictive conditions, is it in order just to check the current title deed or must you go back to previous owners / title deeds and make sure there are no other title deed conditions for the property?

Yes and no.  In title deeds relating to properties held in all the provinces except the "old Cape Province", the conditions will be listed in the current title deed.  With regard to properties registered in the Cape Town deeds office, a pivot system applies which means that one will have to look at the current deed and the pivot deed, to ascertain which title conditions apply.  The practice in the old Cape Town deeds registry when the first deeds were assigned in the 1860's, were to list all the title deed conditions.  When the same property was transferred, the conditions were not replicated, but the new title would have a reference, in a condition, to the previous title where the conditions are listed.  This condition is called the 'pivot'.  The purpose of the pivot is to give a reference to the title deed in which the conditions are reflected.  So one will need to look at the current title deed as well as the conditions in the pivot deed.

7. When does a title deed condition lapse or how is it cancelled?

Generally, title deed conditions do not lapse unless some or other time aspect is linked thereto.  If so, these can lapse by effluxion of time - such as usufructs or pre-emptive rights.  The Deeds Office insists that such lapsed conditions be removed from the Title Deed when the property is dealt with in any way, even when you register a further bond over the property.  A separate application will then be lodged in the deeds office to note the lapsing of the relevant condition.

8. What if the company or person, which has to give consent to the removal of a title deed condition, is no longer in existence or is no longer alive?

A Court can be approached for the necessary consent in the event of the required person no longer being alive.

9. If you subdivide a property, can you create new title deed conditions on the two (or more) newly formed erven?  

The municipality and the owner may create new title deed conditions on the two or more newly formed erven, either in the power of attorney or notarially. It may be a condition of the subdivision imposed by the municipality (servitude over the erf).  It may relate to a height restriction on any newly built building or a limitation on the number of buildings on the property. 

10. What is a praedial servitude?

A praedial servitude is a condition in a title deed that is inserted for the benefit of other erven as designated in the title deed.  Each erf is simultaneously both a servient tenement and a dominant tenement.  Servient meaning that the erf had restrictive conditions inserted into its title deed in favour of other similar erven in the area to which it relates.  Dominant meaning that the erf enjoys the same restrictions over other erven in the area to which it relates.  Tenement, in this instance, means dwelling.  With praedial servitudes, the right vests with each successive owner of a piece of land, which derives a benefit from another piece of land. 

11. What is a personal servitude?

A personal servitude is a condition in a title deed that grants rights to a particular person over that property.  It cannot be transferred as it vests in one particular person.

Two examples of these include; Usufruct, which is a right that entitles a person to have the use and enjoyment of another's property and Habitatio - a right to occupy a house, generally for a prescribed time

12. What is a tie condition?

Notarial tie agreements are agreements that are registered in terms of section 3(1) (r) of the Deeds Registries Act 47 of 1937 as "... real rights, not specifically referred to ..." and are entered into between the owner(s) of land, which are being tied together on the one hand and the party responsible for the enforcement of the tiecondition on the other.

This agreement, upon registration, takes on the status of a restrictive condition.  Registrars' Conference Resolution 17 of 1961 which was confirmed by RCR 1 of 1966 sanctions a tie-agreement in which properties held by different owners may be tied together

Legal effect - The legal effect of a tie agreement/condition is that the properties that are subject to such an agreement shall, from the date of registration, be dealt with as one property.  For example, a bond may not be passed over one of the properties and only transfer of all the properties may be effected during the subsistence of the tie-agreement.  A tie-agreement/condition prohibits separate dealings with any of the properties.  The registration of a notarial tie-agreement does not result in two pieces of land becoming one property, as is the case with consolidations. It only prohibits separate dealings with any of the properties so tied.

An erroneous comprehension of the effect and nature of a notarial tie-agreement is displayed by the court in Pocock v De Olivieira and Others [2006] ZAGPHC 245, on Para 12, where the learned judge stated:

"... in the present matter, such notarial tie-agreements have not been concluded. The properties have not been consolidated into a single erf..."

13. What if my title deed is missing?

You can obtain an 'information' copy from the deeds office, at minimal cost.  (Note that where a copy of the title deed is obtained for other purposes, i.e. because the property is being transferred and the original is lost, the cost increases.)

14. Are building plans required for a wendy house?

It would depend on the size thereof.  The Building Act requires that property owners obtain municipal approval generally in respect of all buildings, additions and renovations, no matter how small.  It does not specifically mention wendy houses. 

However, in certain instances relating to smaller changes, a municipality may give written approval that the owner needs not obtain building permission for "minor building works". "Minor building works" include, amongst others a 'tool shed not exceeding 10 m² in area', 'child's playhouse not exceeding 5 m² in area' and 'cycle shed not exceeding 5 m² in area'. 

There is no general exemption from the requirement to obtain approval for these 'minor' building works, as the municipality must still be approached for written authority that plan approval is not required.

15. Are the compliance certificates of electrical, beetle, gas and water applicable to a wendy house?

The regulations imposing the requirement to obtain compliance certificates for electrical do not impose exceptions/requirements relating to the size or type of building where the unit is installed.  It relates to ownership of the electrical unit/gas system, which usually coincides with the ownership of the immovable property.  So if there is such a unit installed in the wendy house, then yes, a certificate must be obtained if it would have been required for the main residence on the property - i.e. where there was a change of ownership or alteration thereto.

Regarding the beetle certificate, is depends on the wording of the clause in the sale agreement.  It would be wise, in our opinion, to draft the relevant clause in such a way that a beetle certificate should include an  inspection of any wendy houses on the property, as wood-infesting beetles are not confined to a few square metres and may well proceed from a wendy house to a main dwelling on a property in various ways. 

16. What is a Certificate of Occupancy, when is it required and who issues it?

A Certificate of Occupancy is a document that is issued by the Chief Building Inspector for the relevant area once a building has been completed and before the building may be occupied.  It certifies that the building has been completed in accordance with the approved building plans and all other relevant Council requirements (such as payment of fees and contributions, installation of approved water and electricity connections, etc)

17. What is the NHBRC and what is its function? 

NHBRC refers to the National Home Builders Council as provided for in the Housing Consumers Protection Measures Act.  The Act obliges homebuilders to register with the Council as part of a regulatory system aimed at protecting consumers from poor building work; homes to be erected must also be enrolled with the Council.  The Act aims to establish and maintain a good standard of workmanship amongst homebuilders, thereby safeguarding the interests of consumers.  The Council therefore provides cover for consumers where major structural defects manifest in a building within 5 years after it was built and it can be shown that shoddy workmanship is to blame. 

Builders must register with the Council!  In a judgment handed down on 5 June this year, the Constitutional Court (Cool Ideas 1186 CC v Hubbard and Another) found that it could not confirm an arbitrator's award that was granted in a developer's favour if the latter was not registered with the Council at the time of contracting. This is because, even though the developer had subcontracted a builder who was registered, it also had to be registered in order to receive a consideration "in terms of an agreement with a housing consumer in respect of the sale or construction of a home".