KAIN v KHAN 1986 (4) SA 251 (C)

1986 (4) SA p251

Citation 1986 (4) SA 251 (C)

Court Cape Provincial Division

Judge Rose-Innes J

Heard March 5, 1986

Judgment April 23, 1986

Annotations Link to Case Annotations

B
Flynote : Sleutelwoorde
Land - Conditions of title - Registration of against title deed - Seller (lessee) reserving right in
deed of sale to "remain in occupation of the room in the main building itself at a monthly rental of
R10" - Property transferred and lessee applying for rectification of title deed six years later - Right
of lessee to occupation of immovable property C is a ius in personam ad rem acquirendam - Once
occupation given lessee obtaining a real right - Right of occupation of a portion of a building which
is immovable property is a real right which is registrable - Lessee's real right of occupation is a ius
in re aliena abstracted from respondent's otherwise plenary ownership of the immovable property
and thus restricts his rights of ownership within the D meaning of s 63 (1) of the Deeds Registries
Act 47 of 1937 - Application to rectify deed of transfer to incorporate lease granted.
Headnote : Kopnota
The applicant (the lessee) sold immovable property to the respondent (the lessor), but in
clause 7 of the deed of sale E reserved the right "to remain in occupation of one room in
the main building itself at a monthly rental of R10". The property was transferred to the
respondent in 1980 and the applicant continued to live in a room of the house paying the
rent monthly. The applicant sought an order for rectification of the deed of transfer by
incorporating clause 7 therein. The Registrar of Deeds contended that clause 7 only
granted the right of occupation of a portion of a building and did not restrict the exercise
of the right of ownership in respect of F the relevant immovable property as envisaged
by s 63 of the Deeds Registries Act 47 of 1937.
Held, that the right of a lessee to occupy the premises was a ius in personam ad rem
acquirendam.
Held, further, that once occupation is given and taken the lessee acquired a real right of
occupation of the premises, a G ius in re.
Held, further, that the right of occupation of a lessee of a building or a portion of a
building, which is immovable property acceding to land, is a real right which is
registrable.
Held, further, that the lessee's real right of occupation under clause 7 of the deed of sale
of portion of the immovable property owned by respondent was a ius in re
aliena abstracted from the rights comprised in the respondent's otherwise
plenary H immovable property, which included the house.
Held, accordingly, to the extent that clause 7 reserved the occupation of part of the
immovable property to the lessee, that the respondent's exercise of ownership of the
immovable property which included the rights to use and occupy the property, was
restricted within the meaning of s 63 (1) of Act 47 of 1937 and was registrable in the
deed of transfer.
Case Information
 Application for a declaratory order and for an order for the I rectification of a deed of transfer. The facts appear from
the reasons for judgment.
M A Albertus for the applicant.
No appearance for the respondent.
J Cur adv vult.
1986 (4) SA p252
ROSE-INNES J
A Postea (April 23).
Judgment
ROSE-INNES J: Applicant seeks an order for the registration of her right of occupation of a room in a dwelling at 66
Factreton Avenue, Kensington, against the title deed of the property on B which the dwelling stands. The property is
properly described as erf 25018 Cape Town at Maitland.
The property was part of the joint estate of applicant and her late husband, who died in 1976. Applicant succeeded to
the whole of the property upon the death of her husband. She continued to live in the house on the property. On 12
June 1979 C she sold the property to respondent. In terms of clause 7 of the deed of sale she reserved for herself the
right to continue to occupy one of the rooms of the house, as follows:
"7. The parties agree that the seller herein shall be entitled, after registration of transfer, to remain in
occupation of one room in the main building itself at a monthly rental of R10 payable on the first day of the
month succeeding the registration of transfer and thereafter on the first day of D each and every succeeding
month, such occupation to continue until such time as the seller decides to vacate the said room voluntarily or
until her death. The purchaser shall not be entitled to take any action for the ejectment of the seller from the
said room until the seller fails to make payment of the aforesaid monthly rental within seven days of due date.
It is recorded that the seller shall be entitled to live in the said room with her present husband, E Michael
Caine, but shall not be entitled to sub-let the room nor permit any other person to share the room with her
without the written consent of the purchaser."
The property was transferred to respondent by deed of transfer No T35818 on 25 September 1980.
Applicant has continued to live in a room of the house on the property since the deed of sale was concluded, a period
of F almost seven years, and has duly paid the monthly rent.
The notice of motion prays an order of Court:
(a) declaring that clause 7 was incorporated in the deed of sale at the time of signature thereof
by applicant and respondent on 12 January 1979 at Cape Town; and
G (b) rectifying title deed 35818 of 25 September 1980 so as to include clause 7 of the deed
of sale.
The reason for the first of these prayers is that, according to applicant, respondent has asserted that clause 7 was
added to the deed of sale only after he had signed it. He disputes that H he agreed to the clause as a term of the sale.
Respondent has not delivered any notice of intention to oppose the present application and has thus chosen not to
repeat in these proceedings his allegation that clause 7 was improperly inserted in the deed of sale.
Applicant states in her supporting affidavit that clause 7 was I agreed by the parties as part of their contract for the
sale of the property and that the clause was one of the clauses in the deed of sale which respondent signed on 12 June
1979. The attorney who acted for both parties in settling and drafting the deed of sale in 1979 and his articled clerk
who attended to the signature by the parties of the deed of sale, and who signed it as a witness of their signatures to
the deed, have disposed to affidavits stating that clause 7 was included in J the deed of sale on the instructions of
both parties and was part of the deed of sale which they both signed. On these
1986 (4) SA p253
ROSE-INNES J
uncontested averments there can be no doubt that respondent A agreed to the clause and that the clause was in the
deed of sale when he signed it. It is accordingly so found. The first prayer in the notice of motion should therefore be
granted.
The Registrar of Deeds has reported to this Court as follows in B regard to the second prayer in the notice of motion:
"It is, however, respectfully pointed out that as para 7 of the relevant deed of sale - annexure B to the affidavit
by applicant - only grants the right of occupation of a portion of a building and does not restrict the exercise of
the right of ownership in respect of the relevant immovable property as envisaged by s 63 (1) of Act 47 of
1937, it is to my mind not a registrable condition. Accordingly I doubt if it can be incorporated in the relevant
deed of transfer T35818/1980."
Subject to these remarks the Registrar states that he has no C objection to an order of Court being granted as prayed
in the notice of motion.
This is an unopposed application, so that I have not had the benefit of debate in argument on the point made by the
Registrar. I was not referred to any guiding authority, nor was I referred to the statutory provisions which, in addition
to s D 63 (1) of Act 47 of 1937, appear to me to govern the answer to the query posed by the Registrar. The opinion
expressed by the Registrar seemed to me to merit more than perfunctory consideration.
Section 63 (1) of the Deeds Registries Act 47 of 1937 to which E the Registrar refers, provides as follows:
"63 Restriction on registration of rights in immovable property -
(1) No deed, or condition in a deed, purporting to create or embody any personal right, and no
condition which does not restrict the exercise of any right of ownership in respect of
immovable property, shall be capable of registration: Provided that a deed containing
such a condition as aforesaid may be registered if, in the opinion of the Registrar, such
condition is complementary or otherwise ancillary to a F registrable condition or right
contained or conferred in such deed."
Clause 7 of the deed of sale confers upon applicant a right to occupy at a monthly rental a room in a house on land
the ownership of which was intended to be and has been transferred to respondent in terms of the deed of sale. The
 right of G occupation endures until applicant voluntarily vacates the room or until her death, provided the rent is duly
paid. The clause has all the essential elements of a lease. The lease endures for an indefinite period at the volition of
the tenant until her death. Leases of land of such duration, like leases for 10 or more years, are nowadays to be
regarded as long leases. The Deeds Registries Act 47 of 1937 defines "immovable H property" as including any
registered lease of land which, when entered into, was for a period of not less than 10 years or for the natural life of
the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the
lessee indefinitely or for periods which together with the first period amount to in all not less than 10 years. This
definition sets out the essentials of a long I lease of land as is evident from s 1 (2) of the Formalities in Respect of
Leases of Land Act 18 of 1969 which employs the same wording as the Deeds Registries Act to describe leases which
have the effect in terms of Act 18 of 1969 of a long lease. The section provides:
"1 (2) No lease of land which is entered into for a period of not less than 10 years or for the natural life of
the J lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of
the lessee
1986 (4) SA p254
ROSE-INNES J
A indefinitely or for periods which together with the first period of the lease amount in all to
not less than 10 years, shall, if such lease is entered into after the commencement of
this Act, be valid against a creditor or successor under onerous title of the lessor for a
period longer than 10 years after having been entered into, unless -
(a) it has been registered against the title deeds of the leased land; or
B (b) the aforesaid creditor or successor at the time of the giving of credit or the entry into
the transaction by which he obtained the leased land or a portion thereof or obtained a
real right in respect thereof, as the case may be, knew of the lease."
These provisions expressly contemplate the registration of a long lease of land and Act 18 of 1969 expressly
contemplates C such registration "against the title deeds of the leased land". The Deeds Registries Act obliges the
Registrar of Deeds to register "notarial leases of land" (s 3 (1) (b)), and in doing so he acts in accordance with s 77
(1) of the Act which provides that,
"save where provision to the contrary is made in any law, any lease or sublease of land... intended or required
to be Dregistered in a deeds registry, shall be executed by a notary public: Provided that any such lease shall
be registered for the full term thereof, including periods of renewal."
The notarial leases of land referred to in s 3 (1) (b) and s 77 (1) include long leases, since s 77 (1) speaks of "any
lease" of land. Indeed, the Act permits and enjoins the registration E of any lease of land, whether or not it is a long
lease, provided the lease is intended or required to be registered in the deeds registry. It may be added that the
circumstances that a lease, such as the lease created by clause 7 of the deed of sale in this case, is not in the form of
a notarial deed does not preclude its ultimate registration. If the parties intended the lease to be registered in the
deeds registry, or if either F party is entitled to require that it be registered, the other party can be compelled to do
whatever is necessary in order that the lease may be registered, including doing whatever is necessary for its notarial
execution as a preliminary formality for its registration in the deeds registry.
The Registrar does not in terms state that the prohibition in s G 63 of Act 47 of 1937 of the registration of a condition
creating a personal right precludes the registration of clause 7. A contract of lease creates an obligation between the
lessor and lessee as parties to the contract and does not contractually bind third persons who are not parties. The
rights acquired by the lessee are personal rights contractually Henforceable against the lessor only. Johannesburg
Municipal Council v Rand Townships Registrar and Others 1910 TPD 1314 at 1320; Shalala and Another v Gelb1950
(1) SA 851 (C) at 863; Jadwat and Moola v Seedat1956 (4) SA 273 (N) 276; Bodasingh's Estate v Suleman1960 (1)
SA 288 (N) at 290. One of the I personal rights of the lessee is to claim delivery of the subject-matter of the lease, in
the case of a lease of immovable property, by being given occupation of the leased premises. The right is a ius in
personam ad rem acquirendam. Once occupation is given and taken the lessee acquires a real right of occupation of
the premises, a ius in re. Breytenbach v Frankel and Another 1913 AD 390; Kessoopersadh en 'n Ander v Essop en 'n
Ander1970 (1) SA 265 (A) at 274; Heynes Mathew Ltd v Gibson NO1950 (1) SA 13 (C) at 15. If the lease created
by J clause 7 is "a lease of land", applicant acquired a registrable lease and a
1986 (4) SA p255
ROSE-INNES J
registrable real right of occupation, since she was in A occupation at the time of the contract and thereafter remained
in occupation by virtue of the contract.
The Deeds Registries Act obliges the Registrar to register any real right (s 3 (1) (r)). The Act defines a real right as
including any right which becomes a real right upon B registration (s 102 (1)). This definition at first blush seems to
beg the question as to what rights are registrable rights, if all rights are either real or personal, and only real rights
are registrable, since s 63 precludes the registration of personal rights. The true purport of this definition is to include
as registrable real rights which the person entitled has not yet acquired, but which he has a Cpersonal right or claim
to acquire by registration. A lease well illustrates the position in which the lessee has a personal right to delivery of
occupation of the premises either by being given occupation or by registration of the lease, or both, and once he takes
occupation or the lease is registered he acquires a real right of occupation, or as the Act puts it, D the right becomes
a real right on registration.
It follows from what has been said that if clause 7 is a lease "of land" applicant would be entitled to registration of the
clause against the title deed of the property because leases of land are registrable in terms of the Act and because
applicant would have a real right of occupation by virtue of her occupation of the premises, which is a registrable real
right E in terms of the Act.
It is not necessary for the decision of this application to consider the effect of a long lease of land, or of the lease in
terms of clause 7 of the deed of sale, or of the registration of such lease. All we are concerned with is whether clause
7 is F registrable, whatever the consequences of the lease or its registration may be. It suffices to note that the order
of Court which is sought and the registration of clause 7 would give applicant a valuable safeguard to her security of
tenure in addition to such safeguard as she now has. Registration will give her no such additional security of tenure
against respondent who is bound by the lease under clause 7 for its full period as a party to the contract, whether or
not the G lease is registered. The same applies to a universal successor in title to respondent, who succeeds to the
liabilities as well as the rights of the owner, and to a successor under lucrative title, who acquires gratuitously and not
for value. Applicant already has security of tenure against these successors whether or not the lease is registered and
whether or not these H successors acquire with knowledge of the lease. Registration of clause 7, however, will afford
applicant additional security of tenure against a particular successor in title of respondent, who succeeds to rights but
not liabilities of the owner, and against a successor under onerous title who acquires for value, who are not bound by
a lease, unless they knew of I it, or unless it is registered. And if clause 7 is a long lease of land, registration of the
lease will give her added security of tenure against creditors and successors under onerous title who acquire without
knowledge of the lease, to the extent that such successors will be bound for the full period of the lease, whereas
without registration they may be bound by the lease, but not for any period of exceeding 10 years from the inception
of the lease (s 1 (2) of Act 18 of J 1969); and seven of those years have already
1986 (4) SA p256
ROSE-INNES J
A elapsed in this case. The order of Court which is sought would therefore afford a valuable and real protection
should applicant be required to vacate her room by a creditor or successor in title of respondent who is not bound by
the lease unless it is registered, or who is not bound for the full period of the lease, but only for the few remaining
years of B the restricted term of 10 years referred to.
The Registrar doubts that clause 7 is registrable because it "only grants the right of occupation of a portion of a
building and does not restrict the exercise of the right of ownership in respect of the relevant immovable property as
envisaged by s 63 C (1) of Act 47 of 1937". If I understand the Registrar correctly, his objection could also be
expressed by saying that the right of occupation of one room in a house in terms of clause 7 is not a "lease of land" as
contemplated by s 3 (1) (b) and ss 77 - 83 of the Deeds Registries Act 1937 and is therefore not a registrable lease. If
it is not a lease of land D it does not create a registrable real right as contemplated by s 3 (1) (r) of the Act.
The circumstance that a right of occupation relates to only a portion of a building obviously does not preclude the
agreement which creates the right from being a lease. The letting of rooms as lodgings or as business offices are
common examples of leases of portions of buildings. Clause 7 is clearly such a E lease. The question is whether it is a
"lease of land" in terms of s 3 (1) (b) and s 77 of Act 47 of 1937. These words in the Act and in the Formalities in
Respect of the Leases of Land Act of 1969 contemplate a lease of land and any immovable property which accedes to
the land. The sections apply also to a lease of any part of such property. Since a building accedes F to the land on
which it stands, any part of the building accedes to the land and is immovable property. A lease of any portion of an
erf or of any portion of immovable property which accedes to a portion of an erf is a lease of land. A lease of a house
or any portion of a house is a lease of immovable property acceding to land and is a lease of land within
the G meaning of the Deeds Registries Act of 1937. A lease to you of my caravan parked in my yard is not a
registrable lease, but a lease of my outbuilding in my yard is a registrable lease of land; so too is the lease of part of
my outbuilding or part of my house, since it is a lease of immovable property which accedes to the land. It is therefore
incorrect to say that a H lease of portion of a house and the right of occupation which it confers does not relate to the
relevant immovable property.
The real right of occupation created by a registered lease, or a lease of premises of which the tenant has taken
occupation, is akin to otheriura in re aliena such as rights of use, occupation or habitation of land or portions of land,
or of immovable buildings on portions of land, which are real rights registrable against the title deed of the property of
which I they form part. No difficulty arises in the practice and procedure of deeds registration, and in particular the
registration of leases of land and the real right of occupation created by such registration, by permitting the
registration of a lease of any part of land, or any part of a building acceding to land. The Registrar of Deeds raises no
such practical or procedural difficulty to the registration of the terms of J clause 7 against the title deed of the
property. The circumstance that clause 7 grants the right
1986 (4) SA p257
ROSE-INNES J
of occupation of a portion only of a building does not preclude A the registration of the clause against the title deed of
the property of which the building forms part.
I am unable to agree with the Registrar that such right of occupation of portion of a building "does not restrict the
exercise of the right of ownership in respect of the relevant B immovable property within the meaning of s 63 (1) of
Act 47 of 1937". Section 63 (1) precludes the registration of any personal right, but the right of occupation of a lessee
of a building or portion of a building, which is immovable property acceding to land, is a real right which is registrable.
The section goes on to provide that only a condition which C restricts the exercise of any right of ownership of
immovable property may be registered. Respondent's ownership of the property includes ownership of the house
which is part of the immovable property acceding to the land which he owns. Applicant's real right of occupation under
clause 7 of portion of the immovable property owned by respondent is a ius in re D aliena abstracted from the rights
comprised in respondent's otherwise plenary ownership of the immovable property, which includes the house. To the
extent which clause 7 reserves the occupation of part of the immovable property to applicant, respondent's exercise of
his rights of ownership of the immovable property which include the rights to use and occupy E the property, are
restricted within the meaning of s 63 (1).
In order for a lease of land to be registrable in terms of s 3 (1) (b) and s 77 (1) of the Act, it must be "intended or
required to be registered in a deeds registry" and executed by a notary public. There is nothing in the deed of sale or
in the affidavits in support of the application to show that the parties intended that clause 7 should be registered
against the F title deed of the property. The Deeds Registries Act 1937, and in particular s 3 (1) (b) and s 77 (1),
however, do give applicant a right to the registration of the lease created by clause 7 and impose a duty upon the
Registrar of Deeds to register such a lease and the real right of occupation which applicant has pursuant to clause 7.
Applicant is entitled to G require the registration of her lease and real right against the title deed of the property. In
my view the words in s 77 (1) "required to be registered in a deeds registry" mean required by law to be registered,
as where a law might require registration for the validity or effectiveness of a lease, and also mean required to be
registered in the sense that the Deeds H Registries Act requires the Registrar of Deeds to register a lease which
complies with the provisions of the Act for a registrable lease which is tendered for registration at the instance of a
person who is entitled to such registration. The need for the notarial execution of such a lease has already been
 mentioned as not precluding registration. Applicant is entitled to registration of clause 7 against the title deed of I the
property.
An order is accordingly granted as follows:
(a) It is declared that clause 7 of the deed of sale signed by the parties on 12 June 1979 at
Cape Town (annexure B to the application) was incorporated in and formed part of the
said deed of sale at the time of the signature thereof by respondent and applicant J at
Cape Town on 12 June 1979.
1986 (4) SA p258
A (b) The Registrar of Deeds is hereby authorised and required to rectify deed of transfer
T35818 dated 25 September 1980 by including clause 7 of the aforesaid deed of sale as
a condition in the said deed of transfer.
B Applicant's Attorneys: Z A Abdurahman & Associates.