Your question
Can the bank sell a house with an unreregistered usufract clean?
The supplied sources do not establish that a bank can always sell a house “clean” of an unregistered usufruct. In Rehoboth, a personal servitude must be created by written agreement and registered on the land title; if the land is mortgaged, the mortgagee’s written consent is required for registration. 4
For a court-execution transfer, the Deeds Registries Act permits transfer of mortgaged land without prior cancellation or release of the bond. 3 A purchaser in good faith and without notice of a defect is protected from impeachment of an execution sale of immovable property after transfer is registered. 2
A transfer under the relevant Deeds Registries Act provision is passed subject to servitudes and other encumbrances recorded in the deeds registry. 5 Therefore, the sources support that a registered usufruct would appear as an encumbrance, but they do not conclusively state the effect of an unregistered usufruct on a bank sale outside execution, or where the purchaser has notice of it. 25
Verified sources
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
Magistrates' Courts Act 32 of 1944
delivery thereof or in the case of immovable property after registration of transfer, be liable to be impeached as against a purchaser in good faith and without notice of any defect. Surplus after execution
Deeds Registries Act 47 of 1937
(1) No transfer of mortgaged land shall be attested or executed by the registrar, and no cession of a mortgaged lease of immovable property, or of any mortgaged real right in land, shall be registered until the bond has been cancelled or the land, lease or right has been released from the operation of the bond with the consent in writing of the holder thereof or unless, in the case of any such mortgage bond which has been lost or destroyed, the registrar has on application by the registered holder thereof, cancelled the registry duplicate of such bond: Provided that no such cancellation or release shall be necessary i f the transfer or cession is made - [introductory phrase of subsection (1)...
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 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...
Deeds Registries Act 14 of 2015
(b) the person or persons ascertainable from the contents of the deed of transfer or from other evidence to the satisfaction of the registrar, if the person or persons referred to in paragraph (a) is or are not named in the deed of transfer. (8) The person or persons referred to in subsection (7)(a), and the person or persons referred to in paragraph (b) of that subsection, if such person or persons is or are ascertainable, must sign an acceptance of the conditions referred to in that subsection before the registration of the deed of transfer concerned. (9) If the land to be encumbered by a personal servitude in terms of subsection (1) is mortgaged or is subject to another real right with wh...