A,B,C (Siblings) brought an application against D (Executor in E’s Estate), for the Cancellation of a Title Deed which was issued in E’s name (deceased).The basis of this application is that the property Erf 123 Orlando West was a “Family House”.

Prior to 1991 Black people were not allowed to acquire full ownership of a property and instead were granted occupational rights to the said property. After 1991 that limitation fell away and was automatically converted to full ownership with no time limitation.

In the Black communities we often appoint a representative as the registered owner of the said property, on condition that the said property remains a family house, subject to all the members of the family and their extended families having access to the said property.

In this type of situation, conflict arises when the representative dies and when the law of Testate (With a Will) or Intestate (Without a Will) comes into play.

1.    Section 6 of the Deeds Registries Act 47 of 1937

According to the above section, an Applicant may apply to Court for a Cancellation of a Title Deed.

2.    Upgrading of Land Tenure Rights Act 112 of 1991

As mentioned previously, black people were not allowed to own a property and instead occupied a property for a fixed period of 99 (ninety nine) years.  After 1991 the leaseholds were automatically converted to a freehold.

3.    Shomang v Motsose N.O & Others

In this matter the Applicant made an application for a cancellation of a deed of transfer which was registered in the name of the deceased.

The purpose of the application was that the deceased was appointed as      “custodian” of the property, subject to all the children and grandchildren having access to the property.

The Department acknowledged that they did not register a personal servitude in favour of the family members.

The Court ordered that the property be registered in the Applicant’s name, subject to all the family members having access to the property.

In this instance, a Copy of the Court Order may be served upon the Registrar of Deeds. The relevant office will then have to endorse the office copy of the title deed, to the effect that once the Applicant lodges his/her copy of the title deed, it must be updated with the endorsement. However, if the Registrar has not been served with the Court Order, an application would have to be made by a Conveyancer for registration.

Although the Deeds Registries Act, does not make provision for the protection of family rights, a caveat can be made against the title deed of the said property, to restrict the “registered owner’s: right to alienation.