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Unregistered usufracts on a house with a court order
A court-ordered transfer is subject to the court order’s terms and to conditions, servitudes, bonds and other encumbrances reflected in the deeds registry records. The registrar must enter and endorse those recorded encumbrances before delivering the transfer deed. 35
The supplied Deeds Registries Act provisions prohibit registration of a usufruct that purports to continue beyond the holder’s lifetime, and prohibit its transfer or cession to anyone other than the owner of the burdened land. 12 For Rehoboth land, a personal servitude must be created by a written agreement signed by the landowner and beneficiary, and registered by endorsement on the land title, subject to mortgagee consent where the land is mortgaged. 4
The supplied sources do not establish whether an unregistered usufruct over a house is legally enforceable between particular parties, nor whether a particular court order creates, preserves or extinguishes it. They establish only that a transfer pursuant to an order carries recorded encumbrances, subject to the order’s own terms. 35
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Where this answer comes from
Deeds Registries Act 47 of 1937
the lifetime of the person in whose favour it is created s hall be registered, nor may a transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby, be registered. Reservation of personal servitudes
Deeds Registries Act 14 of 2015
(a) a personal servitude of usufruct , usus or habitatio purporting to extent beyond the lifetime of the person in whose favour it is created; or [The word “extend” in the phrase “purporting to extend” is misspelt in the Government Gazette, as reproduced abov e.] (b) a transfer or cession of a registered personal servitude referred to in paragraph (a) to or in favour of any person other than the owner of the land encumbered by the servitude. Reservation of personal servitude
Deeds Registries Act 47 of 1937
(8) Subject to the terms of any order made under this section any deed of transfer passed in pursuance of such order shall be passed subject to every condition, servitude, bond or other encumbrance to which, according to the records of the deeds registry, the property to which the application relates, is subject, and the registrar shall, in connection with such condition, servitude, bond or other encumbrance, make the usual and proper entries and endorsements upon or in respect of such deed of transfer in his registry, before such deed is delivered to the applicant. (9) The registration of immovable property in the name of any person in pursuance of an order made under this section shall hav...
Registration of Deeds in Rehoboth Act 93 of 1976
(1) (a) A personal servitude shall be created by means of a written agreement which shall be prepared as far as practicable in the prescribed form and which shall be signed by the owner of the land burdened therewith and the person in whose favour the servitude is created. (b) A personal servitude shall be registered - (i) by effecting an endorsement on the land title of the land burdened therewith; and (ii) if the land is mortgaged, on production of the written consent of the mortgagee. (2) No - (a) personal servitude of usufruct usus or habitatio intended to expire after the death of the person in whose favour it is created; (b) transfer of such personal servitude to any person other than...
Deeds Registries Act 14 of 2015
(a) require any issue of fact in dispute to be tried upon pleadings, without the issue of a summons; or (b) make such other or alternative order relating to the issue referred to in paragraph (a), as it considers fit, including an order relating to the payment of costs. (8) A deed of transfer passed pursuant to an order made in terms of this section, is subject to - (a) the terms and conditions determined by the order; and (b) every condition, servitude, bond or other encumbrance to which the property concerned is subject, according to the records of the deeds registry concerned. (9) The registrar, in respect of the conditions, servitudes, bonds or other encumbrances referred to in subsectio...
Water Resources Management Act 11 of 2013
(1) The acquisition, amendment or cancellation of a servitude by virtue of an order of the High Court takes effect when the order is noted in terms of the Deeds Registries Act, 1947 (Act No. 37 of 1947) or the Registration of Deeds in Rehoboth Act, 1976 (Act No. 93 of 1976). (2) Nothing in this section prevents a person from registering the acquisition, amendment or cancellation of a servitude in accordance with the Deeds Registries Act, 1947. Cancellation of servitude