The Subdivision of Agricultural Land Act No. 70 of 1970 explained: Part 1
The subdivision of agricultural land or “farmland” is regulated by the Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) which came into operation on 2 January 1971. Baker J, in the case of Van der Bijl v Louw, stated that the Act has its purpose in preventing the situation where farming units are created which are not economical or could be described as non-viable subunits. This prevention objective is achieved in essence by the Minister of Agriculture, Land Reform and Rural Development of South Africa, who has to give their consent before any subdivision may lawfully be effected. Section 2 of the Act will be the topic of discussion in Part 1 of this series of articles and encompasses actions which are excluded from the application of the Act. These actions include the scenarios as follows: Firstly, the application of the Act is excluded where any portion of agricultural land is subdivided in order to transfer a portion thereof to the State or a statutory body, or a transfer to the State or statutory body of an undivided share in land, or the selling or granting of any right to any portion of agricultural land to the State or statutory body. The meaning of “right” in the latter scenario is defined in Section 1 of the Act as not including any right to minerals or a prospecting or mining right, but merely a right in relation to agricultural land. The second exclusion to the application of the Act is where a person had died before 2 January 1971,which is the commencement date of the Act, and there was a consequent passing of an undivided share or any subdivision of land due to a provision in the deceased’s last will and testament or due to intestate succession where the deceased had not left a will. The third exclusion to the application of the Act is where a contract was entered into before the commencement of the Act, and such contract made provision for the passing of an undivided share in any agricultural land. The fourth exclusion is where a surveyor has completed and submitted to the surveyor-general the relevant subdivisional diagram and survey records to be examined and approved prior to the commencement of the Act. The fifth and final scenario that is excluded from the application of the Act is where a lease agreement for a portion of agricultural land had been concluded in writing before the commencement of the Subdivision of Agricultural Land Act Amendment Act, 1974 and such lease was registered with its provisions similar to Section 3(d) of the Act. Such provisions are lease contracts where the lease period amounts to 10 (ten) or more years in total, or, when consecutive lease contracts entered into did not amount to a total time period of less than 10 (ten) years. Thus, if a person who finds him or herself in circumstances where they are dealing with the subdivision of agricultural land and such circumstances are alike with any of the five scenarios above, then the Act will not be applicable. This means that such subdivision of farmland can be effected immediately without compliance to any other conditions and/or provisions as contained in the Act. In Part 2 of the series on “The Subdivision of Agricultual Land Act No. 70 of 1970 Explained”, we shall look at actions that are prohibited in the subdivison of agriculural land or actions amounting to such subdivison and consider any available remedies. Recources: CJ Nagel “The Subdivision of Agricultural Land Act 70 of 1970, Options to Purchase and Related Matters” 2016 (79) THRHR p 276. 1974 2 SA 493 (C) 499. T Sewapa “Subdivison of Agricultural Farmland” 2016 p 1. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The Subdivision of Agricultural Land Act No. 70 of 1970 explained: Part 2
In this Part 2 of the series of “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at actions that are prohibited regarding the subdivision of agricultural land or any actions amounting to such subdivision and if there are any available remedies. Once again it is reiterated that The Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) has its purpose to prevent the subdivision of farming units or the creation thereof, and such units not being economical in their nature. This objective is essentially achieved through the Act as the Minister of Agriculture, Land Reform and Rural Development of South Africa has to give his or her consent before any subdivision may lawfully be effected. The first three actions which are prohibited by the act are that agricultural land may not be subdivided; no undivided share in agricultural land shall vest in any other person if such undivided share is not already held by a person, and no part of such undivided share in agricultural land shall vest in any other person if such part is not yet held by another person. The fourth action which is prohibited concerns the leasing of agricultural land and the renewal of such lease. The Act states that no one may enter into a lease for which the period of such lease is 10 years or longer. Neither may the length of the lease be the natural life of the lessee and/or the life of any other mentioned person in such lease. Further actions which are prohibited surrounding the leasing of agricultural land by the lessee, is the renewal of such lease either by the continuation of the original lease or by entering into a new lease and such continued and/or renewed lease being for an indefinite period or the combined period of 10 (Ten) years. The following actions are prohibited by the Act, except where such actions relate to the purposes of a mine as defined in section 1 of the Mines and Works Act. These actions include the selling or advertising for the sale of a portion of agricultural land, whether or not the latter is surveyed or contains any building thereon. Furthermore, the selling or granting of a right to such portion is not allowed if it is: for more than 10 years; or for the natural life of any person; or to the same person if such consecutive periods amount to more than 10 (Ten) years. Section 3(f) of the Act states that no area of jurisdiction, local area, development area, peri-urban area, or other area referred to in paragraphs (a) and (b) of the definition of “agricultural land” in section 1 of the Act, shall be established on, or enlarged to include any agricultural land. Lastly, the action of giving public notice that a scheme relating to agricultural land, or any portion thereof has been submitted or prepared under the ordinance in question. Thus, if a person finds him or herself in circumstances where they are dealing with the subdivision of agricultural land and such circumstances are alike with any of the scenarios above, then such dealings will be prohibited in terms of the Act and will be null and void. This means that such actions will need the prior consent of the Minister to comply with the Act. In Part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at the procedure on how to apply for consent as required by the Minister. This will include the imposition, enforcement, or withdrawal of conditions by him or her, as well as any miscellaneous provisions. T Sewapa “Subdivison of Agricultural Farmland” 2016 p 1. Section 3(a)-(c) of the Act. Section 3(d) of the Act. No. 27 of 1956. Section 3(e)(i)-(ii) of the Act. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Sectional Title Schemes: A Developer’s Obligations
A developer who wishes to establish a sectional title scheme on a piece of land where there is an existing building, has certain statutory obligations should the building be wholly or partially let for residential purposes. This is not applicable to commercial leases. The Sectional Titles Act 95 of 1986, (the Act), as amended, requires the developer to submit a draft sectional plan to the Surveyor-General for approval. However, before the plans can be submitted, the developer has to comply with Section 4(3) of the Act. This section imposes a duty of notification on the developer. Every lessee of the proposed sectional title scheme building has to receive a notice, in writing, by way of a letter delivered either personally or by registered post. This letter has to give notice of a meeting to be held at least 14 days after the delivery or dispatch of the letter, at the building or at a location within a reasonable distance of the building. It should convey the fact that the developer intends to be available to provide such particulars of the relevant scheme as they may reasonably require, and furthermore provide information regarding the lessees’ rights as contemplated in Section 10 of the Act. The developer is also required to provide a certificate of prescribed particulars relating to the scheme with the letter. The particulars are peremptory and briefly-stated, include the following: The name of the scheme. The description and extent of the land upon which the building is situated. The full names and address of the developer. The title deed number of the land. The number and description of units in the scheme. The number of garages and parking places provided for. A land surveyor or engineer’s report in respect of the general physical condition of the building, specifically if there are any defects in the building. A specified estimate of the annual expenditure in respect of the repair, upkeep, control, management and administration of the common property, payment of rates and taxes and other local authority charges, the charges for the supply of electricity, water, sanitation and other services, insurance premiums, all other costs recovered in respect of the common property which are normally recovered from the owners of units. The developer has to confirm that the meeting has been held as provided for unless all the lessees have, in writing, stated that they are aware of their rights and they do not wish to purchase the proposed units which they occupy. Section 10 of the Act essentially provides a lessee with a right of pre-emption, restricting the developer to first offer the occupied unit to the lessee who was entitled to receive the notice letter. Should the developer act to the contrary and offer the lease to another party, that contract will be void. The lessee has 90 days from the receipt of the offer to purchase in which to accept or refuse the offer. Should the offer be refused, the developer may not within a period of 180 days from the refusal by the lessee sell the unit to any other person for a lower price without first offering it to the lessee. The lessee then has 60 days in which to accept or refuse the new offer. During these periods (i.e. from the date of the notification letter and subsequent offers to purchase), the developer may not, subject to the lessee occupying the unit and complying with the conditions of the lease, require the lessee to vacate the premises or increase the rent payable (unless the lease agreement makes provision for such an increase during these periods). The Act provides that a developer, or any person who has performed partially or fully in terms of a void contract, shall have a claim against the other party to the extent of such performances. The developer can, in addition, claim reasonable compensation for the use of the unit and claim compensation for any damages caused by the person thereto. The other party may claim interest on any payment made from date of payment, as well as reasonable compensation for any expenses incurred by him or any improvements subject to conditions and compensation for damages or loss which he would have been entitled to claim from the developer on the grounds of breach of contract, had the contract not been void. Finally, the Act imposes criminal sanctions on a non-compliant developer, imposing either a fine of R2,000.00 or imprisonment not exceeding 12 months or to both. It is clear that the legislature intends to protect and secure a lessee’s rights by imposing an obligation of notice of the proposed development and by granting an obligatory statutory right of pre-emption in favour of the lessee by the developer. The intention to protect a lessee’s common law rights, as found in the maxim “huur gaat voor koop”, is thus clear. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)