What buyers, owners need to know about title deed restrictions

Property practitioner Cacisa Mgudlwa

Restrictive conditions may be defined as conditions registered in title deeds during the process of township establishment by a property developer and the subdivision process. Many title deeds also contain detailed conditions that set out to regulate the way and extent to which a property may be used or developed by the legal owner.

Potentially costly to amend, remove

Furthermore, property practitioner Cacisa Mgudlwa maintains that there is a concrete reason why these restrictions are put in place: “The purpose of title restrictions is mainly to protect the local amenity; to ensure a harmonious layout of the township and to preserve the character of the area for the benefit of the surrounding property owners. Having these restrictive conditions against your property can be immensely frustrating, and can be potentially costly to be relaxed, suspended, amend or permanently removed,” she says.

Some of these title deed restrictive conditions are witnessed in various components within a property, whether internal or external. Mgudlwa makes reference to an example/incident that often occurs where you find a property owner erecting a wall structure that overlaps into a neighbour’s yard, thus infringing on another person’s rights. “These kind of incidents indicate very limited knowledge regarding what is entailed in a title deed regarding restrictions or it could be an act of ignorance, which is unfortunate as it could have been avoided,” she says. This then brings into question the level of education being afforded to homeowners and them taking it upon themselves to seek knowledge.

Restrictive conditions are witnessed and governed in different ways by law and include conditions regarding the disposal or sale of a property, restrictions with respect to individual rights, no building or structure may be built in a servitude area, no large rooted trees may be planted and, lastly, the provision of public service infrastructure to and across the premises. Previously, the power to alter, remove or suspend restrictive conditions fell within the competent provincial authority. With the effect of the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”) from 1 July 2015, power now has been granted to municipalities on application to remove, suspend or amend restrictive conditions against the title deed of land.

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Can restrictions be avoided prior to purchasing property?

Often, buyers forget the importance of familiarising themselves with the title deed and checking if there any existing restrictive conditions against the property. It is, therefore, advisable that buyers should, before finalising their offer, request the transfer attorneys to obtain a copy of the title deed and consult with them to discuss any restrictive conditions therein, particularly where these conditions may impact on their future plans.

Finally, title deed restrictive conditions can have an impact on the value of the property and buyers and sellers should take this into consideration. Before signing any offer to purchase on a home, buyers should carefully read through the title deed to ensure that they are fully aware of all the details pertaining to the property. Moreover, restrictive title deed conditions may sometimes be out-dated and no longer relevant to the character of the area. It is, however, important to note that they remain in effect, even if the character of the area has changed or a proposed development is in line with the relevant statutory framework.