In cases where you have restrictive conditions (i.e. restrictions on the building rights of the owner) on your title deed, it may be difficult to know what to do about the situation.
While restrictive conditions may take various forms, they generally relate to conditions imposed in respect of development of a township.
This would include servitudes in favour of the local municipality, such as in respect of sewerage piping and in what buildings may be erected on the property.
It may prevent the owner of the property from erecting anything more than one dwelling and one outbuilding. This is to generally to maintain the character and nature of the neighbourhood concerned.
Depending on the nature of the restrictive condition, there are various ways in which its removal or modification may be sought.
For example, if it was established by agreement, it may be cancelled by agreement. However, this usually only applies to a limited number of circumstances.
A common means of removal of a restrictive condition is to apply to the appropriate court. But the nature of the condition concerned may influence the requirements in order to bring the application and also if the order will actually be granted.
The Immovable Property Act may also be used in certain instances, although this typically applies where a property was passed on to one or more by way of a will.
Any beneficiary with an interest in immovable property, that is affected by a restrictive condition, can apply to have it removed or modified if the amendment will benefit anyone entitled to the property.
In the case of “Camps Bay Ratepayers Association versus Minister of Planning Western Cape”, the judge confirmed the test to be applied in the removal of a restriction must disregard the interest of the applicant.
He further stated that there should be some other advantage in the granting of the application.
Thus, the interests of a township, area or the public will be considered over the interests of the applicant when an application for the removal of a restriction is being considered
It is recommended to seek professional advice as to the most applicable way in which to seek the removal of the restrictive condition imposed on your immovable property.
This is especially necessary when the nature and type of the restrictive condition concerned requires a certain approach to be followed.
Failing to comply with the necessary requirements could result in the application being inaccurate and thus cause the processing of it to be delayed or even result in the order sought not being granted.
Contact Van Deventer & Van Deventer Incorporated to assist you formulate an approach to lifting restrictive conditions on your property.
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