Provincial Support Document: Restrictive Conditions · • Title deeds / Deeds of transfer ... •...

Provincial Support Document:

Restrictive Conditions

DEADP Training Sessions

17 & 18 June 2015 – Riversdale

24 & 25 June 2015 - Franschhoek

Garron Campbell

Structure of Presentation

1. An Introduction to Property Deeds

2. Applicable Case Law

3. Servitudes

4. Relevant Considerations for Removals of Restrictions

5. Key Questions and Scenarios

6. Other Possibilities to Consider

7. Operational Requirements

8. Transitional Arrangements

9. Who is the ‘Administrator’?

10.Concluding Statement

1. An introduction to property deeds

• What is a property deed?

Property deeds are legal documents constituting evidence of a right,

especially to the ownership of property, as well as obligations, or mortgages

on a property. It is the instrument used to transfer ownership, and by

inference, rights from one entity to the next.

Some examples of property deeds are:

• Title deeds / Deeds of transfer

• Certificate of consolidated title

• Notarial deeds

• Pivot deeds

• VA deeds

1. An introduction to property deeds

• Why do they exist?

The purpose of a property deed, and its conditions and restrictions, is to

protect the amenity and character experienced in an area and are

usually imposed in the establishment of a township.

These conditions and restrictions were first imposed in the form of restrictive

covenants and later as conditions of title and are binding legal

obligations written into the deed of a property by the Administrator and/or

initial seller.


• Various court cases have shaped the way we assess, evaluate and process

applications of this nature.

• BECK AND OTHERS VS. THE PREMIER, WESTERN CAPE – CASE NO 12596/96

• CAMPS BAY RATEPAYERS AND RESIDENTS ASSOCIATION AND OTHERS VS MINISTER OF PLANNING, CULTURE AND

ADMINISTRATION – CASE NO’S. 6455/98 & 6594/98

• JAMES PATRICK HAYES & ALBERTA HAYES V MEC OF FINANCE AND DEVELOPMENT PLANNING – CASE NO

1222/2000

• VAN RENSBURG V MEC FOR HOUSING, LOCAL GOVERNMENT & TRADITIONAL AFFAIRS, EASTERN CAPE AND

OTHERS - CASE NO 3399/2010 AND 3498/2010

• Even though they were related to applications processed in terms of the Removal

of Restrictions Act, 1967 (Act 84 of 1967), there are still lessons which we have

learnt that are still relevant going forward.


These lessons include:

• Any procedural flaws on applications should be rectified prior to a decision being taken.

• The extent of advertising is not only determined by the Act or By-law, but by the wording and/or

implication of the restrictive condition as contained in the relevant Title Deed.

• The only relevant considerations are the ones listed in the legislation.

• A town planning scheme does not override title deed restrictions. Both are relevant and

applicable.

• The reason for the insertion of the title deed restriction should always be taken into account.

• There can be no automatic removal of title deed restrictions. (“Blanket” Removals)

3. Servitudes

• Conditions of title in favour of another party other than the owner of the property are

called servitudes.

• These servitudes can either be personal servitudes or praedial servitudes.

• 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.

• Some examples of these include:

• Usufruct - a right that entitles a person to have the use and enjoyment

of another’s property

• Habitatio – a right to occupy a house, generally for a prescribed time

• 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.

• In the case of praedial servitudes, the right vests with

each successive owner of a piece of land which

derives a benefit from another piece of land.

3. Servitudes

4. Relevant Considerations for Removals of

Restrictions

The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

• Any removal, amendment or suspension of a restrictive title deed condition must be in

accordance with section 25 of the Constitution. Section 25 relates to constitutional rights

with regard to property as it protects anybody from being deprived of property.

Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013)

• In terms of SPLUMA, a decision with regard to a removal, amendment or suspension of

a restrictive condition should comply with the considerations clearly set out in the

following sections:

• Section 6, 7 and 8 – Development Principles Norms and Standards

• Section 42 – Considerations when deciding on an application


Restrictions

Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) (Cont.)

Section 47 - Restrictive Conditions

“Section 47(2) A removal, amendment or suspension of a restrictive condition contemplated in

subsection (1) must, in the absence of the contemplated written consent, be effected—

(a) in accordance with section 25 of the Constitution and this Act;

(b) with due regard to the respective rights of all those affected, and to the public interest;

and

(c) in the prescribed manner, if such removal, amendment or suspension will deprive any

person of property as contemplated in section 25 of the Constitution.”


Restrictions

Land Use Planning Act, 2014 (Act 3 of 2014) (LUPA)

“Section 39(5). When a municipality considers the removal, suspension or amendment of a

restrictive condition, the municipality must have regard to at least the following:

(a)the financial or other value of the rights in terms of the restrictive condition enjoyed by a person or entity,

irrespective of whether these rights are personal or vest in the person as the owner of a dominant tenement;

(b) the personal benefits which accrue to the holder of rights in terms of the restrictive condition;

(c) the personal benefits which will accrue to the person seeking the removal, suspension or amendment of the

restrictive condition if it is removed, suspended or amended;

(d) the social benefit of the restrictive condition remaining in place in its existing form;

(e) the social benefit of the removal, suspension or amendment of the restrictive condition; and

(f) whether the removal, suspension or amendment of the restrictive condition will completely remove all rights

enjoyed by the beneficiary or only some of those rights.”


Restrictions

Land Use Planning Act, 2014 (Act 3 of 2014) (LUPA)

Section 49 . Basis of assessment of land use applications

• In terms of this section the applicable spatial development frameworks and structure plans,

principles (i.t.o Chapter 6 of LUPA), the desirability of the proposed land use and guidelines

on desirability that may be issued by the Provincial Minister, must be considered.

Section 59 . Land use planning principles

• Section 59 refers to land use planning principles in relation to land use applications.

• These include:

• spatial justice,

• spatial sustainability,

• efficiency,

• good administration, and

• spatial resilience


Restrictions

Proposed Standard Draft By-law on Municipal Land Use Planning

“Section 33(5). When a municipality considers the removal, suspension or amendment of a

restrictive condition, the municipality must have regard to at least the following:

(a)the financial or other value of the rights in terms of the restrictive condition enjoyed by a person or entity,

irrespective of whether these rights are personal or vest in the person as the owner of a dominant tenement;

(b) the personal benefits which accrue to the holder of rights in terms of the restrictive condition;

(c) the personal benefits which will accrue to the person seeking the removal, suspension or amendment of the

restrictive condition if it is removed, suspended or amended;

(d) the social benefit of the restrictive condition remaining in place in its existing form;

(e) the social benefit of the removal, suspension or amendment of the restrictive condition; and

(f) whether the removal, suspension or amendment of the restrictive condition will completely remove all rights

enjoyed by the beneficiary or only some of those rights.”

5. Key Questions and scenarios

• In line with the considerations set out in the relevant legislation, a set of key

questions have been developed which you should ask yourself when

considering the removal of each and every restrictive condition.

• It is acknowledged that these key questions may only be some of the

questions that should be asked as these will vary according to the type of

application.

• The intention though is to use these questions to satisfy the considerations in

the legislation and to begin to frame the assessment that is required.


Why was the restrictive condition imposed and how is it beneficial?

(Linked to section 33(5 )(d),(e) and (f) of the By-Law, 39(5)(d),(e) and (f) of LUPA and section 47(2)(b) of SPLUMA)

• As previously stated, restrictive conditions were often inserted into title deeds in order to protect

the amenity and character experienced in an area.

• A unique character and sense of place (e.g. historical, cultural)

may be an intrinsic part of an area and removing restrictive

conditions that allow a deviation from this, may impact on these

benefits.

• It is important to establish why these conditions are there and how they are beneficial to the

area by remaining in the deed.


Do the rights have any financial or other value for the holder of those rights (i.e.

including any other property owner) and is this value measurable?

(Linked to section 33(5)(a) of the By-Law and 39(5)(a) of LUPA)

• When a restriction is removed, a neighbour may experience financial or other value loss. This may

include a loss in property value or quality of life such as a right to privacy, or loss of sunlight.

• It is important to establish if this loss can be measured or quantified. A possible tool to assist in this

evaluation could be a property valuation report or other specialist studies.

• Section 57 of SPLUMA: “a performance of a function or an exercise of power may not be stopped

or impeded solely on the ground that the value of property is affected.”


Why will the restriction remaining in place be in the public interest or

benefit?

(Linked to section 33(5)(d) of the By-Law, section 39(5)(d) of LUPA and section 47(2)(b) of SPLUMA)

• When the removal of a restriction will have a clear impact and not be in the public

interest, it may then be beneficial for the restriction to remain in place.

• Where the removal of a restrictive condition will lead to the closure of access to a public

amenity (e.g. access to a public beach or open space), it may not be in the interest or

benefit of the public to remove that condition and allow the development to occur.

Public

Beach

Access?


How will the removal, amendment or suspension of the restrictive condition be in

the public interest or benefit?

(Linked to section 33(5)(e) of the By-Law, section 39(5)(e) of LUPA and section 47(2)(b) of SPLUMA)

• When the removal of a restriction will have a clear benefit and be in the public interest even though

there may be some impact on other parties, the removal may be favourably considered.

• A scenario of this may include the provision of an education facility in

an area that has a dire need for such a facility may represent such

clear public benefit.

• In this instance, there may be some impact on other

parties but the provision of a facility that is desperately

required in an area might outweigh this impact on

individual property owners.


How will the personal benefit to the applicant in the removal or amendment of

the restrictive condition impact on the personal benefits currently enjoyed by

any other holders of those rights?

(Linked to section 33(5)(b) and (c) of the By-Law and section 39(5)(b) and (c) of LUPA)

• There may be instances where the removal of a restrictive condition may have little or no impact (even

though not completely non-existent) on other parties in an area, but be of benefit to the applicant, it may

be considered favourably in some certain instances.

• Occupational practices of a limited scale in predominantly residential

areas may be more personally beneficial for the applicant and the

community than the potential negative impact thereof.

• When the removal of a restrictive condition will be to the benefit of the applicant but will have a clear

impact on other parties in an area, it may be unfavourable to remove it. This may, in some instances, be

when a change in land use creates significant noise intrusion and/or traffic congestion.

6. Other possibilities to consider

• There are certain instances where the complete removal of a restrictive title deed condition may not

be considered as the most appropriate course of action.

• In these instances, the amendment or suspension of these conditions to a lesser degree might be a

more appropriate measure to find the balance between the holders of those rights and the

applicant who wishes to acquire more rights.

A potential scenario may include:

• An application to increase the coverage on a property

• In terms of the title deed, the permissible coverage

may be 50 percent.

• It might not be feasible to increase the coverage

on that erf to what was applied for (80 or 90 percent).

• There may still be some merit in amending the title

deed restriction to allow for additional coverage

to 60 or 70 percent.

7. Operational Requirements

The standard procedures for applications are prescribed in the Proposed Standard Draft

By-law on Municipal Land Use Planning. Some key things to note at each stage:

Application:

Advertising:

Assessment:

Decision:

After the Decision:

• Check the title deed for any additional advertising requirements.

• Remember to include Ward Councillors and Community Organisations.

• Ensure that there is relevant motivation supplied for each restrictive

condition seeking to be removed, amended or suspended.

• The weighting of each relevant consideration will vary according to the

type of application. Remember to apply them all and use your discretion.

• You have to publish a notice in the Provincial Gazette once you have

removed, amended or suspended a restrictive condition

• It is now the applicants responsibility to ensure that the title deed is

endorsed at the registrar of deeds. Try to ensure compliance in this regard.


Section 78 of the Land Use Planning Act, 2014 (Act 3 of 2014) sets out the transitional

provisions:

Specifically, section 78(2) states: “Despite section 77, any action taken or application made before the

commencement of this Act in terms of a law repealed by this Act and that has not been finalised

immediately before the commencement of this Act must be finalised as if this Act is not in force.”

Section 47(5) of the Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013)

and the Draft Regulations prescribed in terms of the Land Use Planning Act, 2014 (Act 3 of

2014) allow for the following:

The applicant or holder of the title deed must apply to the Registrar of Deeds and Surveyor-General to

make the appropriate entries in and endorsements on any relevant register, title deed, diagram or plan

and submit to the Registrar of Deeds the title deed for the purpose of this subregulation.

What does this mean?

BEFORE the implementation of LUPA in your Municipality:

• All applications submitted in terms of the Removal of Restrictions Act, 1967 will be

processed, advertised, assessed and decided upon in a ‘business as usual approach’.

AFTER the implementation of LUPA in your Municipality:

• Municipalities will consider process, advertise, assess and decide upon all new

applications in terms of the provisions and considerations in the relevant legislation.

• All existing applications in terms of the Removal of Restrictions Act, 1967 remain. DEADP

will still be the decision making authority on these applications.


IN BOTH INSTANCES, it is now the applicants responsibility to ensure that the original

title deed is endorsed by the registrar of deeds.


Section 39(4) of the Land Use Planning Act, 2014 (Act 3 of 2014)

“Any reference to the approval by the Administrator or Townships Board in a restrictive condition,

excluding a restrictive condition in terms of which the Provincial Government acquires private law rights,

is regarded as a reference to the approval by the relevant municipality.”

Section 42(6) Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013)

“Where a condition of title, a condition of establishment of a township or an existing scheme provides

for a purpose with the consent or approval of the administrator, a Premier, the townships board or any

controlling authority, such consent may be granted by the municipality and such reference to the

administrator, a Premier, the townships board or controlling authority is deemed to be a reference to the

municipality.”


What does this mean for Municipalities going forward?

• Once LUPA is implemented in your Municipality, you are now the Administrator.

• All title deed references to ‘consent or approval’ of the administrator, the

Premier, Townships Board or controlling authority will now refer to a

Municipality. – YOU CAN NOW GIVE CONSENT/APPROVAL

• References made to ‘relaxations with consent from the administrator’ also refer to the Municipality.

Stemming from this, the following should be noted (upon LUPA implementation):

• DEADP will no longer process ‘informal’ removals or relaxations.

• No provision in made for a ‘relaxation‘ in terms of the legislation.

• You may still require DEADP consent if listed as a third party in a Title Deed.

Remember to always check the deed to see if the restriction requires consent from or is in favour

of another ‘party’ to be removed. In this instance, consent must still be obtained from them

10. Concluding Statement

• Title deed restrictions are for the reciprocal benefit of the owners in a general township

scheme.

• Each erf is simultaneously both encumbered by the title deed condition in favour of all

the other similar erven (servient tenement) and favoured by the title deed condition in

respect of the other similar erven (dominant tenement).

• This benefit gives each of them the right to enforce a restrictive title deed condition and

therefore the right to object to any removal/ suspension or amendment thereof.

10. Concluding Statement

It is therefore important to bear in mind that there needs to be a clear benefit when you

remove/suspend or amend a restrictive condition because you are not only allowing

more rights/benefits to the applicant but also simultaneously impacting on the

rights/benefits of other properties for whose right/benefit that restriction was originally

intended.

Thank You

Comments and/or queries to be submitted to:

Region Director Email Telephone

Region 1: • City of Cape Town • West Coast

Zaahir Toefy [email protected] (021) 483 2700

Region 2: • Cape Winelands • Overberg

Henri Fortuin [email protected] (021) 483 5842

Region 3: • Eden • Central Karoo

Gavin Benjamin [email protected] (044) 805 8618

Provincial Support Document: Restrictive Conditions · • Title deeds / Deeds of transfer ... •...

Documents

Transcript of Provincial Support Document: Restrictive Conditions · • Title deeds / Deeds of transfer ... •...