The retention of viable agricultural land, of which much is made today, is not a new topic. In 1970, the Subdivision of Agricultural Land Act was introduced to stem the unbridled subdivision of agricultural land into non-viable portions. That Act provides that (with some exceptions, such as certain servitudes and dispositions to the State) agricultural land shall not –
- be subdivided or shared; or
- be let for more than 10 years, except as a whole.
So, if you wish to give each of your children a portion of your very large farm, or to sell or buy a portion of a farm, how do you go about this?
There are three sets of authorities that you have to obtain consents from, namely:
- the Department of Agriculture, Forestry & Fisheries;
- the local municipality, in terms of an Act referred to as SPLUMA; and
- the Roads Department.
You will need to motivate that each portion of agricultural land will be viable in its own right, or cannot be used as agricultural land, for the first consent to be given. The second consent deals primarily with access to services and the third consent with road access to each resultant portion of land. Practically speaking, engage the services of a professional land surveyor (as opposed to a “surveyor” who may not undertake cadastral survey work) who will investigate the viability of the application and apply to each of these authorities, providing whatever motivation, sketches and payments that are required.
If the applications are successful, each of these authorities would give a written consent, together with such conditions that each may feel are necessary to ensure that the land remains commercially viable, and that the consumer/future owner of the subdivided land, has access to services and the land itself, to properly enjoy his ownership. Often such consents are made subject to conditions such as the creation of servitudes over or in favour of neighbouring farms for access to water and provincial roads. Often the subdivided land may be consolidated into a larger existing property.
Having obtained the relevant consents, the land surveyor would beacon the subdivision, compile a formal diagram of the subdivision, and submit the diagram to the local Surveyor-General for approval. The owner would have to comply with any condition set by each of these authorities and obtain confirmation from that authority of his compliance.
SPLUMA consents lapse after five years. Those wishing to subdivide, must therefore act upon such consents and get these registered in the relevant deeds office within that period. This may be done by way of a transfer of the holding title to another, or where the farmer wishes to retain the subdivided portion of land, by taking out a so-called Certificate of Title for that subdivision. These registrations may only be undertaken by a conveyancer – consult a seasoned fellow, as such registrations can be daunting for the uninitiated.
By far the major cost of subdivisions of agricultural land is the application and survey costs which, I am told, would start at about R60 000.
In a nutshell, employ a land surveyor, obtain the consents and then consult a conveyancer. Other options are to consider holding such land via a company or trust. Keep in mind that such sharing, whatever the mechanism, is usually problematic.
