Removal of Restrictive Conditions

A “Removal of Restrictive Conditions” can be lodged by a town planner in order to remove restrictive conditions in a Title Deed that prohibit certain activities or land uses.

If there are conditions in the property title deed which are restrictive in nature, especially as far as land use applications are concerned, the title conditions needs to be removed that are aimed at controlling the way the land is used, density, building and construction material etc.

These “Restrictive” title conditions were inserted in title deeds in years gone by, prior to modern town planning schemes. The later township establishments comes with no restrictive conditions. Today, the Town Planning Scheme controls the conditions to be removed. These might be health bylaws and National Building Regulations etc.

Town Planning Schemes and other local municipal by-laws have now superseded this control mechanism and are strictly enforceable by the local authority.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 –

1. in accordance with section 25 of the Constitution and this Act;
2. with due regard to the respective rights of all those affected, and to the public interest; and
3. 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.