What’s the deal with title deeds? Everything homeowners need to know
What’s the deal with title deeds and what should you look for in one before taking ownership of the property?
11/12/2023
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)."
Kagiso Mahlangu - CMS South Africa
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.