Removal of Restrictive Conditions

When a township is originally established, conditions are written into the title deeds of individual erven that restrict how the land may be used and developed. These restrictive conditions were intended to protect the character of the neighbourhood at the time the township was proclaimed, but decades later they can become serious obstacles to legitimate development. In Johannesburg, where many townships were established in the early and mid-twentieth century, property owners regularly encounter title deed restrictions that no longer reflect the realities of the area. Removing these conditions is a formal legal process, and at Eduard van der Linde & Associates, we have been handling removal of restrictive conditions across Gauteng since 1992.

Understanding Restrictive Title Deed Conditions

Restrictive conditions are legally binding provisions registered against a property’s title deed at the Deeds Office. Unlike zoning, which is governed by the Town Planning Scheme and can be changed through rezoning, title deed conditions are embedded in the property’s chain of title and require a separate process to remove or amend. They run with the land, meaning they bind every successive owner, regardless of whether the conditions still serve a useful planning purpose.

These conditions were typically imposed by the original township developer or by the local authority at the time of proclamation. They were designed to maintain a certain standard or character within the township, but as Johannesburg has grown and evolved, many of these conditions have become outdated and restrictive in ways that were never anticipated.

Common Restrictive Conditions

• Single dwelling clause — Perhaps the most frequently encountered restriction, this condition limits the property to a single dwelling house. It prevents any higher-density development, even where the zoning and the Spatial Development Framework support densification.
• Building line restrictions — Conditions specifying minimum setbacks from property boundaries that may exceed what the Town Planning Scheme requires, preventing the owner from utilising the full building envelope permitted by the zoning.
• Coverage and floor area limits — Some title deeds impose maximum coverage or floor area ratios that are more restrictive than the current Town Planning Scheme provisions.
• Height restrictions — Limits on building height that may prevent the construction of multi-storey buildings, even where the zoning permits them.
• Use restrictions — Conditions that limit the property to residential use only, preventing any commercial, office, or institutional activity regardless of what the Town Planning Scheme may allow.
• Architectural and aesthetic conditions — Requirements regarding building materials, roof types, boundary walls, and similar design elements that may conflict with modern building practices or development plans.
• Prohibition on subdivision — Conditions that expressly prohibit the division of the property, even where the stand is large enough and the zoning supports it.

The Legal Process for Removal

The removal of restrictive conditions is governed by the Spatial Planning and Land Use Management Act (SPLUMA) and the City of Johannesburg’s Municipal Planning By-Law. The process follows a path similar to other land use applications:

1. Title deed analysis — We obtain and review the property’s title deed to identify all restrictive conditions, determine which conditions need to be removed or amended, and assess whether their removal is likely to be supported by the municipality.
2. Motivation report — A comprehensive written motivation is prepared, explaining why each condition should be removed. The motivation must demonstrate that the conditions are no longer relevant, that their removal will not be detrimental to surrounding properties, and that the proposed development or use is consistent with the Spatial Development Framework and sound planning principles.
3. Application and advertising — The application is submitted to the municipality and advertised in a local newspaper and by notice on the property. This gives affected parties, including neighbours and the original township developer (if ascertainable), the opportunity to object.
4. Objection management — We address any objections received, either through written responses or direct engagement with the objecting parties. Neighbour concerns about the impact of removing restrictions are taken seriously and addressed on their merits.
5. Municipal Planning Tribunal decision — The application is presented to the Municipal Planning Tribunal for decision. Upon approval, the municipality issues formal authorisation for the removal of the specified conditions.
6. Surveyor General and Deeds Office — The removal is registered against the title deed at the Deeds Office, with notification to the Surveyor General where applicable. Only once this registration is complete does the removal take legal effect.

Removal of Restrictions and Rezoning

In many cases, removal of restrictive conditions and rezoning are needed simultaneously. For example, a property zoned Residential 1 with a title deed condition restricting it to a single dwelling house will need both a rezoning to a higher-density residential zone and the removal of the single dwelling clause before a townhouse development can proceed. We routinely submit these applications concurrently to avoid unnecessary delays.

It is important to understand that removing a restrictive condition does not change the zoning, and rezoning does not remove a title deed condition. They are separate legal instruments, and both must be addressed where they conflict with the intended development.

Common Scenarios Requiring Both Processes

• Densification projects — Converting a large residential stand into townhouses or flats requires rezoning for the density and removal of the single dwelling clause.
• Commercial conversions — Turning a residential property into offices requires rezoning to Business and removal of any residential-only use restriction in the title deed.
• Subdivision — Dividing a property where the title deed prohibits subdivision requires the removal of that condition before or alongside the subdivision application.

Title deed conditions are relics of a particular moment in a township’s history. While they served a purpose when imposed, planning is a dynamic discipline, and the law recognises that conditions which no longer serve the public interest should not permanently constrain a property’s potential.

If your development plans are being held back by restrictive title deed conditions, contact us for an assessment. We will review your title deed, advise you on what can be removed, and manage the entire process from application through to Deeds Office registration.