Gert Minnaar, practising conveyancer at the Illovo branch of STBB Attorneys and serving SAARDA committee member
The owner of subdivided land may transfer or mortgage the remaining extent of the subdivided land before all the subdivisions are transferred.
Introduction
A developer followed the judicious advice of his town planner, land surveyor and conveyancer to acquire and consolidate two stands in a formalised township to form the following consolidated stand:
Erf 6275 Lehae Extension 1 Township was then subdivided into 179 subdivisions numbered as Portions 1 to 179 on Subdivisional General Plan SG No 2569/2019. This Subdivisional General Plan was approved in terms of regulation 20(1) of the Regulations to the Land Survey Act because when a property is subdivided into 10 or more pieces of land a general plan instead of individual subdivisional diagrams for the subdivisions is required by the Surveyor-General.
Erf 6275 Lehae Extension 1 Township was then fully subdivided leaving no remaining extent of the subdivided land once all 179 subdivisions are dealt with. This means that Erf 6275 Lehae Extension 1 Township became the subdivided land and the 179 portions into which it was divided the subdivisions of the subdivided land.
The process at the Deeds Office
The developer must in terms of section 3(1)(t) of the Deeds Registries Act first note the fact against the title deed for Erf 6275 Lehae Extension 1 Township that the subdivided property is divided into 179 subdivisions before he may dispose of any of these subdivisions.
This endorsement causes the Deeds Office to update its records regarding Erf 6275 Lehae Extension 1 Township to show while Erf 6275 Lehae Extension 1 Township is held by its title deed that Portions 1 to 179 of Erf 6275 Lehae Extension 1 Township are now also held by the same title deed, even if these subdivisions are not listed as separate properties in this title deed or registered as such in the Deeds Office records.
The status of the subdivided land after receiving the endorsement regarding the subdivision thereof
The developer is now the registered owner of a piece of land with more than one identity, namely that of the subdivided land (Erf 6275 Lehae Extension 1 Township) and the subdivisions of the subdivided land (Portions 1 to 179 of Erf 6275 Lehae Extension 1 Township).
The difference between the subdivided land and the subdivisions of the subdivided land is that Erf 6275 Lehae Extension 1 Township is described in the title deed while the endorsement in terms of section 3(1)(t) of the Deeds Registries Act on this title deed, with reference to Subdivisional General Plan SG No 2569/2019, is the only proof of the fact that Portions 1 to 179 of Erf 6275 Lehae Extension 1 Township exist.
This may seem very peculiar but if a Deeds Office search is conducted against any of Portions 1 to 179 of Erf 6275 Lehae Extension 1 Township it will show that these subdivisions are held by the same title deed as for Erf 6275 Lehae Extension 1 Township, even though the property in this title deed is described as Erf 6275 Lehae Extension 1 Township.
The similarity with a township title
This situation is similar to that of a township title for a formalised township where the land title gets endorsed in terms of section 46 of the Deeds Registries Act to show that the land was converted into a township with stands, parks and streets. The stands in the township are not reflected as properties held under separate paragraphs in the township title but its existence is confirmed by the section 46 endorsement which lists the stands and parks into which the land was converted.
The township title is thus equivalent to the title deed for the subdivided land, the section 46 endorsement on the township title analogue to the section 3(1)(t) on the title deed for the subdivided land, and the stands in the township correspond with the subdivisions of the subdivided land.
The transfer of a township, portion or the remainder thereof
Section 47 of the Deeds Registries Act allows for the transfer of a township, portion or the remainder of a township by the township owner.
The transfer of the township, before any of the stands have been transferred, does not require the listing of all the stands in the township in separate paragraphs in that deed of transfer, as the proclaimed township consisting of all the stands in the township is transferred.
Similarly, if a portion of a township is transferred it is the remaining extent of the township, made up of the stands which have not been transferred yet, which gets transferred. Section 47 (b) of the Deeds Registries Act states that when the remainder of a township is transferred or mortgaged the Surveyor-General must issue a certificate of remainder. This remainder is calculated by deducting the extent of the stands which have been transferred already from the extent of the land on which the township was established.
What is good for the goose is also good for the gander
In the same vein the transfer of the subdivided land, before any of the subdivisions have been transferred, is legally possible, as well as the transfer of the remaining extent of the subdivided land, after some of the subdivisions have been transferred already.
This is confirmed in the Deeds Office Practice Manuals as follows:
Also, if the remainder of the subdivided land can be transferred then there is no legal restriction prohibiting the registered owner from mortgaging the remainder of the subdivided land too.
