By Kagiso Mahlangu – Partner: Director and Head of Real Estate and Conveyancing Practice at CMS South Africa
If you’ve ever bought a property, you’ll also have received a title deed (which your bank or home loan provider will hold onto until the home is fully paid off). And even if you haven’t had that experience, you’ll probably have seen good-news inserts about the residents of low-cost housing projects receiving the title deeds to their homes. The document states and proves a person’s legal right to own a piece of land or a building. In other words, it’s important.
But what protections and conditions of ownership are actually laid in a title deed? How do those conditions impact how you can use the property? And what restrictions does it impose? Those are question’s every property owner should be able to answer (or at least know where to find the answer on their copy of the title deed).
Unfortunately, far too many residential and commercial property owners around the country simply have no idea what’s in their title deeds. Down the line, that can result in unnecessary pain and frustration, especially if you want to develop or upgrade and renovate the property. So, with that in mind, what’s the deal with title deeds and what should you look for in one before taking ownership of the property?
Understanding the structure of title deeds
When it comes to getting to grips with title deeds, it’s important for property owners to understand how they’re structured. In all instances, a title deed should show you who the previous owner was and who the current owner is. It should also contain a description of the property.
After that comes the conditions associated with your ownership of the property. Some of those deal with the municipality and cover things such as stormwater drains and water servitudes (a servitude is simply a legal right that allows someone who doesn’t own a particular piece of land to use or access that land for a specific purpose). There may also be provisions for personal servitudes (a neighbour might need to cross your property to access their property, for example).
It’s important to know about and understand these servitudes as they can impact how you are able to use the property. In the example listed above, for instance, you wouldn’t be able to plant trees and bushes across the path that your neighbour uses to get to their property. Unfortunately, far too many property owners don’t take the time to understand these conditions and only become aware of them in the event of a dispute.
The important message to remember here is that, even though you’re the owner of your property, you don’t immediately have absolute rights over it. As such, it’s important that you get and keep a copy of your title deed, especially if the original is sitting with the bank. This can be done fairly quickly and affordably through the Deeds Office or through a conveyancer (your bank may also be able to send a copy through for free).
Consent requirements and outdated conditions
Another important type of condition that comes with title deeds relates to consent. These conditions typically come into play in specific circumstances, such as when you’re trying to pass on the property in your will or if you’re trying to sell it. There might, for instance, be conditions which state that you need to get the permission of your local municipality or homeowners’ association before you can sell the property.
Interestingly, there are also still many South African title deeds that come with obsolete conditions. And because of the country’s history, some of these conditions can be overtly racist. An example of this would be an outdated condition saying that the property can only be transferred to a certain race or population group.
While these conditions look odd, especially almost 30 years after the advent of universal democracy in South Africa, they aren’t usually anything that a homeowner needs to worry about. If there are outdated conditions that no longer fit in with South African law, they’ll simply fall off the title deed when the property is transferred to the next owner.
Most of the conditions I’ve listed above will apply, with some room for variation, whether the property is freestanding or forms part of a sectional title scheme. That’s because they’re most frequently put in place by the local municipality. That does not, however, mean that you can just assume that everything’s exactly the same when moving from one property to another.
Get help if necessary
While the conditions listed in a title deed should be easy to understand, the disputes we’ve seen between property owners of all sizes show that things can get complex. So, in addition to ensuring that you’ve got a copy of their title deeds, it can be important for property owners to go through them with a lawyer or conveyancer. That’s especially important if the owner has big alteration plans for the property.
Bringing in a lawyer to help understand the ins and outs of a title deed might cost money now, but it’s certainly more affordable than dealing with a costly dispute with a neighbour down the line.