Removal of restrictions relates to the process of amendment, suspension or removal of obsolete conditions, obligations, servitudes or reservations and related matters from the registered title deeds of a particular property. There is a plethora of reasons that orchestrate the process of removal of restrictions.
The restrictive conditions relate to the following spectrum of land use matters:
Conditions of title are those contained in deeds of transfer, deeds of grant, certificates of ownership, quitrent grants, permission to occupy certificates and other forms of ownership registered in the Deeds Office. The purpose of title restrictions is mainly to protect the amenity and character of a particular land development area.
In Van Rensburg No and another v Naidoo No and others, Naidoo No and others v Van Rensburg No and others (155/09,455/09)  ZASCA 65,  4 all SA 398(SCA); 2011 (4) SA 149 (SCA) (26 May 2010) the court confirmed the view of the Appeals Court in Ardcornnel Investments (Pty) Ltd that restrictive conditions are imposed for the benefit of all the other erven in a township and are inserted in the respective title deeds for the public benefit as well as to preserve the essential character of a township. It follows that when an owner removes such a condition, the rights of other owners in the township are diminished or extinguished.
Title deed restrictions are for the reciprocal benefit of the owners in a township; thus, each erf is simultaneously burdened or encumbered thereby.
The removal process solely focuses on restrictive conditions and not benefit conditions. The former are basically characterised by distinctive phrases such as “Subject to...”, “Onderhewig aan...”, “The owner of the lot shall...”, “Except...” or “No...”. while the latter are distinguished by the expressions such as “With the benefit of...”, “Met die voordeel van...” or “With the use of...”
The process basically involves an approval phase and publication of the approval in the Provincial Gazette as well as a registration phase to be complete. In short, an application must be lodged by the land owner or by the controlling authority, e.g. a municipality, in terms of the relevant legislation and after approval by the relevant administrator, tribunal or controlling authority the owner or municipality, must lodge an application for endorsement of the relevant title deeds with the Registrar of Deeds regarding such removal.
The application may relate to any of the following acts of registration:
Presently the removal of restrictions remains one of the most abstract and perplexing areas of planning law due to the changes ushered on the one hand by the advent of the constitutional epoch on 27 April 1994, more especially the assignment of the Removal of Restrictions Act 84 of 1967 to the respective provincial governments in terms of Section 235(8) of the Interim Constitution of the Republic of South Africa No 200 of 1993 (Proclamation R160 Government Gazette 16049, 31 October 1994); its subsequent amendment and repeal in different provinces; the advent of Section 47 of the Spatial Planning and Land Use Management Act 16 of 2013 and its relative Municipal Planning By-Laws on the other.
Some Provinces still apply the Removal of Restrictions Act 84 of 1967 and others have enacted their unique legislation in lieu thereof.
The quandary of transitional measures in the midst of these nuances remains a menacing challenge to the proper conception and application of the process.
Consequently there are divergent procedures relating to removal of restrictions nationwide. It is therefore at the backdrop of the foregoing dynamics that the aspect of removal of restrictions must be conceived.
There are three distinct methods for removal of restrictions, namely:
This article focuses on the second method, namely removal in terms of legislation. It must be highlighted here that in the current planning dispensation the legislation refers to National Legislation, Provincial Legislation and Municipal Legislation(By-Laws). As far as removal of restrictions by means of legislation is concerned the following authoritative framework provides a basis for application:
In Camps Bay, Ratepayers and Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape 2001(4) SA294 (C), the judge pointed out that one or more of the following central factors must underpin any feasibility study of removal of a restriction:
Any removal, amendment or suspension of a restrictive title deed condition must be in accordance with section 25 of the Constitution of the Republic of South Africa, 108 of 1996 in so far as it implies a deprivation of land rights.
Over and above the aforementioned factors Act 84 of 1967 further states that other factors include the fact that the land must be required for ecclesiastical purposes, public purposes by the State or Local Authority, erection of any building by the State of Local Authority and any other incidental purpose relating to the above.
In the current dispensation removal of restrictions must be understood within the purview of Section 47 of SPLUMA which reads as follows:
Section 47(5) further states that "an applicant at whose instance a restrictive condition is removed, amended or suspended in terms of this Act, must, within the prescribed period and in the prescribed manner, apply to the Registrar of Deeds concerned for the appropriate recording of such removal, amendment or suspension, and the Registrar of Deeds must in the prescribed manner record such removal, amendment or suspension...”
Before a further exploration of the cardinal dynamics that influence removal of restrictions, it is extremely crucial to take cognisance of various existing mechanisms or processes that govern the process within the purview of South African Law.
This background is of utmost importance if one aims to unravel the rigmarole of removal of restrictions in the SPLUMA and Municipal By-Law dispensation.
The process focuses on the following key aspects: The removal of any restriction, obligation, servitude or reservation which relates to the subdivision of the land or the purpose for which the land may be used in connection with the erection of structures or buildings on or the use of the land, which is binding on the owner of the land arising out of-
Wiseman Bhuqa, Law Lecturer
Legal Support & Deeds Training
Thank you for the informative discussion. An aspect that is stil unclear is who must sign the notarial document for the removal of an obsolete title condition where the condition was originally done in favour of the General Public. According to the Municipality, who consent to the removal in terms of SPLUMA, it is the Premier of the Province (Gauteng), but the office of the Premier indicated that they have never done something like this and is now not responding to a request for reasons.
Any help will be appreciated, thank you.
In terms of the RCR -- The Premier
Do I need to lodge a transfer duty receipt with my Section 68 application, for a condition that has lapsed due to time? The condition states that a dwelling be erected within 18 months after registration. This time period has lapsed and the dwelling has been erected. Thanking you in advance.
I need help with doing a re-zoning of a property in the Northern Cape - Springbok. May I have an example of the form? Do you perhaps know what Section 15 & 16 of the Nama Khoi Municipal By-Laws refer to - this is what the Deeds Office wants us to comply with.