A reader has restrictive conditions on his title deed and wants to know what can be done about the situation.
He does not mention the nature of the issue but presumably, as is mostly the case, a condition in a title deed that can cause concern often entails a restriction on the building rights of the owner.
See the reader’s question here.
While restrictive conditions may take various forms, they generally relate to conditions imposed in respect of development of a township.
Examples of restrictive conditions include servitudes in favour of the local municipality, for example, in respect of sewerage piping and in what buildings may be erected on the property.
The restrictive condition may, for example, prevent the owner of the property from erecting anything more than one dwelling and one outbuilding.
It would appear that the rationale for such types of restrictions is to maintain the character and nature of the neighbourhood concerned.
Depending on the nature of the restrictive condition, there are various ways in which its removal or modification may be sought.
If the restrictive condition was established by agreement, it may be cancelled by agreement. This would, however, apply in limited circumstances.
A common means of removal of a restrictive condition is to apply to the appropriate court.
Again, the nature of the restrictive condition concerned may influence the requirements in order to bring the application and, more importantly, whether or not the order sought from the court will be granted.
The Immovable Property Act may also be used in certain instances.
This act typically applies where a property was bequeathed to one or more persons by a testator, subsequently deceased.
The act states that any beneficiary with an interest in immovable property, which is subject to a restriction, can apply to have it removed or modified if it will benefit anyone entitled to the property.
In the case of “Camps Bay Ratepayers Association versus Minister of Planning Western Cape”, the judge confirmed the test to be applied in the removal of a restriction must disregard the interest of the applicant.
He further stated that there should be some other advantage in the granting of the application.
Accordingly, the interests of a township, area or the public will be considered over the interests of the applicant in considering an application for the removal of a restriction.
The reader should take professional advice as to the appropriate manner in which the removal of a restrictive condition should be sought.
This is particularly so where the nature and type of the restrictive condition concerned requires a certain approach to be followed.
Failure to comply with the necessary requirements may result in the application being flawed and delay the application or result in it not being granted.
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