Application for the Removal of Restrictive Title Deed Conditions
This type of application can be lodged by a town planner in order to remove restrictive conditions in a Title Deed that prohibit certain activities or land uses.
When there are conditions in the title deed of a property which are restrictive in nature, especially in so far as land use applications are concerned, the title conditions needs to be removed that are aimed at controlling land use, density, building and construction material etc.
Such title conditions were inserted in title deeds in years gone by when there were no town planning schemes as they are known today. No townships are established today with title conditions. The conditions to be removed are nowadays all controlled by the town planning scheme, health bylaws, National Building Regulations etc.
The conditions are typically and historically included in title deeds of property within townships established many years ago. The conditions of title were important control mechanisms to protect all other property and property owners in a township and which could be enforced by the Township Owner/applicant.
Town Planning Schemes and other local municipal by-laws have now superseded this control mechanism and are strictly enforceable by the local authority. The need for the above-mentioned condition to remain in the title deeds has therefore fallen away.
It is therefore submitted that the conditions may safely be removed. Section 47 (2) of the Spatial Planning and Land Use Management Act provides the following:
“(2) A removal, amendment or suspension of a restrictive condition contemplated in subsection (1) must, in the absence of the contemplated written consent, be effected –
(a) in accordance with section 25 of the Constitution and this Act;
(b) with due regard to the respective rights of all those affected, and to the public interest; and
(c) in the prescribed manner,
if such removal, amendment or suspension will deprive any person of property as contemplated in section 25 of the Constitution.”
The above-mentioned underwrites the principles set out in SPLUMA and therefore land use applications are in public interest as a whole.