1.2 Land Legal Constraints
The objective of this phase is to conduct a Land Audit to identify any land and legal constraints, including problematic and restrictive title deed conditions, and the procedural steps that need to be undertaken to effect the land assembly.
What is a Land Audit?
Having obtained copies of all title deeds and surveyor general diagrams of the POF properties, these must be carefully analysed by the Project Conveyancer and Professional Land Surveyor to determine the legal status of each property.
The outcome of the Land Audit will inform the pre-conveyancing and land survey tasks that must be undertaken prior to effecting the Land Assembly.
What must the Land Audit define for each POF property?
Who is the registered owner?
Are there restrictive title deed conditions?
Are there servitudes (registered and un-registered)? If so how must these be dealt with?
Are there notarial leases over the property and if so what is the lease period? How should these be dealt with?
Are there surveyor general diagrams defining, as yet, un-registered sub-division(s) of the property? How should these be dealt with? Withdraw the Diagram(s)?
Are there mining rights registered over the property? How should these be dealt with? Are there any endorsements including reference to an expropriation and what impact do these endorsements have on the Land Assembly? How should these be dealt with?
Establish the status of Rates and Service Charges. Establish the outstanding amount owed, if relevant, for the previous two years! As per case law only the last two years of debt may be demanded by the municipality in order to issue a Rates Clearance Certificate.
Are there bond(s) registered on the property? How must these be dealt with?
Identification of any other restrictive conditions of title that may hinder or prevent land assembly.
What must the Land Audit Report Address?
Having specific regard to the POF, the Project Layout Plan, the surrounding properties to the POF and other Project related matters, the Land Audit Report must set out what impact each element of the Land Audit may have on the Land Assembly process.
Identification of a set of steps that may be effected either in parallel or in serial succession.
Set out the legislative processes to be followed to effect the Land Assembly.
Determine what the ‘common ownership’ legal entity should be for the ‘Consolidated POF’.
Determine the statutory and legislative steps that must be effected for the legal entity to be formed or for an existing legal entity to assume ‘common ownership’ for the ‘Consolidated POF’.
Set out any other legal constraints that may have an impact on the Land Assembly.
What is the next step towards Land Assembly?
From the Land Audit report determine a programme of tasks that must be commenced with immediately.
The Programme must be in the form of a ‘Project Plan’ showing dependencies as they relate to the progression of the tasks.
Why is this so important?
If any critical task is delayed the entire procedure towards Land Assembly is delayed and/or may have a fatal impact on the Project
Early intervention must be initiated. History has shown that generally, a task that cannot be effected may take up to two years or longer to resolve
The problems/blockages generally encountered are often beyond the authority of the parties involved in the Project and require extra ordinary intervention, often via other Organs of the State
Give effect to the Programme of Tasks
It is critical to monitor this process to ensure the timelines are met and critical milestones are not missed.
Again the need for early intervention must always be a priority!
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