Beware of Restrictive Title Deeds
It is not uncommon for buyers to purchase what they believe to be their dream home, only to discover that they cannot add on an extra storey because of the existence of a restrictive title deed condition. Restrictive conditions may be defined as conditions registered in title deeds during the process of township establishment, by the township developer in terms of which restrictions are placed on the use of land. Its purpose is to ensure a harmonious layout of the township and to preserve its character.
This can however be immensely frustrating, and potentially costly for a new owner. All is not lost though as restrictive conditions can be amended, or removed.
Previously the process to amend or remove a restrictive title deed condition fell within the provincial authority competence and it was a somewhat cumbersome process. This area of law has recently undergone some important legislative changes including the designation of this power to local municipalities.
The power to alter, remove or suspend restrictive conditions was previously to be found in the Removal of Restrictions Act 84 of 1967. In terms of s 2(1) the competent provincial authority was empowered to alter, suspend or remove a restrictive condition or servitude registered against the title deed of land. This meant that the power to amend or remove a condition was granted to provincial government. The Removal of Restrictions Act was repealed by s 59 of the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”) with effect from 1 July 2015.
In the Western Cape, restrictive conditions are now governed by Western Cape Land Use Planning Act, 2014 (”LUPA”). In terms of s 39 of LUPA, a municipality is empowered, on application of a competent person, to remove, suspend or amend a restrictive condition. Section 1 of LUPA defines a restrictive condition as meaning any condition registered against the title deed of land restricting the utilisation, development or subdivision of the land concerned, excluding servitudes creating real or personal rights. LUPA is given teeth through The City of Cape Town Municipal Planning By-Law, 2015 (“the bye-law”).
All the indications are that this legislative change is resulting in a more effective faster and simpler procedure.