Liens, Easement and

Caveats

Definition and effect of liens

A lien is formed by parties to a contract with the
intention to create a security for repayment of a loan.
The creation of security means the creation of
interest in land or lease, belonging to borrower, in
favour of the lender, whereby he/she gets the right
to enter a lien-holders caveat.
It is a consensual possessory transaction. The
lienholder obtains the right to possess the ITD/lease.
It is equitable charge
It is not the common law lien resulted from the
previous action of landowner: lawyers lien on title till
fees paid, or vendors lien on goods sold.

Formation of lien s. 281

Creation of lien.
Section 281. (1) Any proprietor or lessee for the time being may
deposit with any other person or body, as security for a loan, his
issue document of title or, as the case may be, duplicate lease;
Effect
A lienholder (person or body) (a) may after signing the agreement apply for the entry of a lienholder's caveat; and
(b) upon the entry of such a caveat, becomes entitled to a lien
over the land or lease.
Lienholder has to obtained judgment for the amount due to him,
If the judgment is obtained, he can apply to the Court for an
order for the sale of the land or lease.
Sections

Parties: depositors
Proprietors,
Lessees
Co-proprietors (who is not trustee, or personal
representatives)
Parties: lienholders
Any one (aliens, those under s 43 with the
necessary approval by SA) but must be creditors.
Thirds parties who are not creditors but hold the
IDT or lease is not entitled to enter caveat. Their
caveat will be illegal and not enforceable by courts
and hence if entered is removable by the registrar.

Procedures
(3) civil procedure; and the provisions of sections
256 to 259 and section 266 to 269 apply (the way
the land is sold and the right of borrower before
sale).
(4) A lien-holder shall, on the written request of the
proprietor or lessee, produce the issue document of
title or duplicate lease at any Registry or Land Office
so specified.
(5) The costs incurred by any lien-holder in
complying with any such request shall be payable
by the proprietor or lessee on demand.

EASEMENT
ss. 282 291 NLC
Easement defined
Differences between easement & Land
Administrators Right of Way
Forming easement
Remedies of easement holder

EASEMENTS
Definition .

Section 282(1) In this Act "easement" means any right

granted by one proprietor to another, in his capacity as such
and for the beneficial enjoyment of his land, in accordance
with the provisions of NLC.
Domina Subservie
nt land

nt land

On agreement between parties, the owner of dominant land

acquires the right to use (including all ancillary rights) the
subservient land in a particular way or not to be used by the
owner of subservient land in a way agreed upon by the parties
The grant of right can be (s 286(2))
In perpetuity
For a fixed term of time
The agreement may make it the duty of one or both of the owners
of the dominant and subservient land to pay for, maintain, repair
etc under s 286.
The agreement and the periodic sum payable in consideration for

Rights able to be granted as easements.

Section 283. (1) The rights capable of being granted as
easements are:
(a) to do something in, over or upon the servient land; and
(b) any right that something should not be so done.
(2) The said rights do not include (a) any right to take anything from the servient land; or
(b) any right to the exclusive possession of any part
thereof:
the placing and maintaining in or upon the servient land of
any installations or other works are not excluded from the
rights of the owner of dominant land..

Necessity for express grant.

Section 284. (1) No right in the nature of an easement
shall be capable of being acquired by prescription (that is
to say, by any presumption of a grant from long and
uninterrupted user).(2) Except as mentioned in sub-section

Enjoyment of easements by lessees, tenants and chargees in

possession.
Section 287. (1) Persons who can benefit from the grant of
easement
the proprietor of the dominant land and
his successors in title,
any lessee or tenant
any chargee for the time being in occupation thereof or, so far as
the nature of the easement permits, of any such part.
lessee, tenant or chargee entitled to the benefit may take in his
own name any proceedings necessary for its enforcement.
Special provisions as to easements of way.
Section 288. Where any easement of way is described in the
instrument of grant as a "right of foot-way it would mean without
animals or vehicles (288(a)) and
if described as "right of carriage-way, should mean with or without
animals or vehicles
Unless otherwise provided expressly, it shall mean as authorising any
person

entitled to the benefit thereof, or

 Section 285. Restrictions on power to grant.

(1) a proprietor can grant easements subject to
any prohibition or limitation imposed for the time being in force,
and
to any restriction in interest to which his land is for the time
being subject.

(2) No easement affecting the enjoyment of land, if it is

subject to any lease, tenancy or charge, without the consent
of lessee, tenant, Or chargee;
Such consent be signified in the instrument by which the
easement is granted, as indicated in the Forms referred to in
sub-section (1) of section 286.(3) No cross-easements of
support in respect of partywall may be granted by adjacent
proprietors except in respect of a wall which stands on their
common boundary and is certified by the Director of Survey
and Mapping to do so.

 Section 286. Form, and effect, of grants.

(1) easement shall be effected by an instrument in
Form 17A or,
in the case of the grant by adjacent proprietors of
cross-easements of support in respect of any party
wall, by an instrument in Form 17B.
the easement shall come into existence on the
date on which the instrument is registered.

RELEASE, EXTINGUISHMENT
AND CANCELLATION
Easement can be terminated by the proprietor of dominant land,
by operation of law and by registrar
Release of easement by dominant proprietor.
Section 289. (1) the proprietor of the dominant land may released
easement at any time.
But he has to release it only after the consent of lessee, tenant and
chargee is obtained, if any (3).
(2) Any such release shall be effected by an instrument in Form 17C,
and the easement shall cease to exist on the date on which the
instrument is registered.
Extinguishment of easements by unity of title and possession.

Section 290. Any easement for easement shall be extinguished by

operation of law, if (a) the dominant land and the servient land are vested in the same
proprietor;
(b) no lessee, tenant or chargee is, by virtue of section 287, entitled
to the benefit thereof; and

 Section 291. Cancellation of easements by

Registrar.
As under section 315 the Registrar has the power
to cancel the registration of any easement on any
of the following grounds (a) that it has been extinguished under section 290;
(b) the term has expired, or any event on the occurrence
of which it was expressed to determine has taken place;
(c) it has been abandoned; or
(d)
it is obsolete, or
impedes the reasonable use of the servient land, and
its cancellation will not injure any person entitled to the
benefit thereof.

Caveats

Registrars Caveat
Private caveat
Lienholders caveat
Trust caveat
Judgment order

Registrars Caveats
Definition (Nature) and effect of Registrar's caveats.
The register can enter caveat on any land if he intends with it to
secure the title or interest to an in a given land or to protect title and
interest to and in a land as specified in section 320. the registrar can
enter caveat when wherever such appears to the Registrar to be
necessary or desirable (a) for the prevention of fraud or improper dealing; or
(b) for protecting the interests of (i) the Federation or the State Authority, or
(ii) any person under the disability (minority, mental disorder
or unsoundness of mind, or absent from the Federation); or
(ba) for securing the payment of debt due to the Federation or
the State Authority, whether such debt is secured or unsecured
and whether or not judgement thereon has been obtained; or
(c) by reason of some error made in the register or issue
document of title to the land or any other instrument relating
thereto.
(2) But he cannot enter caveat based on his knowledge about a fact when any
land or interest therein has been acquired, or is to be held, by any person or

The effect of registrars caveat

Section 319 (1(a)(b). Caveat is entered on the Register Document of title,

It prohibits the registration, endorsement or entry on that document of (i) any instrument of dealing;
(ii) any claim to the benefit of a tenancy exempt from registration; and
(iii) any lien-holder's caveat.
(2) The prohibition shall apply to any such instrument notwithstanding
that it was presented for registration before the caveat was entered
(3) The Registrar may waive the said prohibition in any case where he is
satisfied that to do so would not be inconsistent with the purpose for
which the caveat was entered, but, in any case, shall reject the instrument
or, as the case may be, the application for endorsement or entry.
(4) On rejecting any instrument or application for endorsement pursuant
to this section, the Registrar shall take the like steps as if he had rejected
it pursuant to section 298 (absence of certain documents) or, as the case
may be, 317(procedures for endorsement of tenancy)

Private caveats
Section 322. Nature and effect of
private caveats.
(1) "private caveat may be entered by
the Registrar on RDT at the instance of
any of the persons or bodies specified in
section 323;

registered title holder,

registerable interest holder,
beneficial owners under trust, and
guardian or next friend of minor.

Effect
(b) it bind the land itself or an undivided
share in the land or merely a particular
interest therein.
(2) in case of binding the land, to prohibit
so long as it continues in force
the registration,
endorsement or
entry on the register document of title thereto of
(a) any instrument of dealing executed by or on behalf of
the proprietor thereof, and any certificate of sale relating
thereto;
(b) any claim to the benefit of any tenancy exempt from
registration granted by the said proprietor; and

 In case of binding any interest only, to prohibit the registration,

endorsement or entry on the register document of title of (a) any instrument of dealing directly affecting that interest (including
any certificate of sale relating thereto); and
(b) where that interest is a lease or sub-lease (i) any claim to the benefit of any tenancy exempt from registration granted
directly thereout, and
(ii) any lien-holder's caveat in respect thereof

The prohibition is not applicable to where an instrument was

entered proior to caveat or
Where the applicant for caveat and endorsement is the same,
or
where the consent of the affected party is obtained.
See the procedure for application under s 323 (2)(3)

Termination of private
caveat
1. Withdrawal of private caveats (S 325)
2. Removal by Registrar (326), if a notice
of removal is given to caveater and does
not attend hearing before the expiry of
the notice (2 months) unless order the
court is obtained to the contrary.
3. By order of court
4. And by lapse of time (6 years)
.

 Section 327. Removal of private caveats by the

Court.
(1) Any person or body aggrieved by the existence of a
private caveat may at any time apply to the Court for
an order for its removal, and the Court (acting, if the
circumstances so require, ex parte) may make such
order on the application as it may think just.(2) The
Registrar shall, on being duly served with any order
under this section for the removal of a caveat, cancel
the entry thereof on the register document of title, and
note thereon the reason for the cancellation and the
date thereof.(3) Every cancellation under sub-section
(2) shall be signed and sealed.

 Section 328. Lapse of private caveats.

(1) A private caveat shall, if not sooner withdrawn
under section 325 or lapsing pursuant to subsection326(1B)or removed by the Registrar
pursuant to an order of the Court under section
327, lapse at the expiry of six years from the
time from which it took effect, and the entry
thereof may be cancelled accordingly by the
Registrar, either of his own motion or on an
application in that behalf by any interested person
or body.(2) Every cancellation under sub-section (1)
shall be signed and sealed.

 Section 329. Compensation for wrongful caveats, and

limitation on repeated applications.
(1) Any person or body who, wrongfully or without reasonable
cause, secures the entry of, or fails to withdraw, any private
caveat shall be liable to pay compensation to any person or
body who thereby suffers any damage or loss.(2) Where the
Court has ordered the removal of any private caveat under
section 327, or has refused an application under sub-section
(2) of section 326 for an extension of time with respect to any
such caveat, or where the Registrar has removed any caveat
pursuant to sub-section (3) of section 326, the Registrar shall
not entertain any application for the entry of a further caveat
in respect of the land or interest in question it is based on the
like claim as that on which the former one was based

Section 330. Creation and effect of lien-holders' caveats.

(1) Any person or body with whom the issue document of title to any land, or any
duplicate lease, has been deposited as security for a loan may, as provided in section
281, apply to the Registrar under this section for the entry of a lien-holder's caveat in
respect of the land or lease in question.(2) Any such application shall be in Form 19D,
duly attested in accordance with the provisions of section 211, and shall be
accompanied by the prescribed fee, and the issue document of title or, as the case
may be, duplicate lease.(3) The Registrar shall note on any such application the time
at which it was received (being, in the case of any application sent by post, the time
at which it was withdrawn from its cover in the Registry or, as the case may be, Land
Office) and, unless he is prohibited from doing so by any Registrar's caveat, private
caveat, trust caveat or prohibitory order, shall as soon as may be thereafter -

(a) enter the caveat applied for on the register document of title to the land in
respect of which, or a lease of which, it is to have effect; and

(b) serve a notification in Form 19A on the proprietor of that land or, as the case may
be, the person or body for the time being entitled to the benefit of the lease in
question.

(4) The entry of a lien-holder's caveat on any register document shall be effected by
the endorsement thereon, under the hand and seal of the Registrar, of the words

Termination of lienholder
caveat

Section 331. Determination of lien-holders' caveats.

(1) A lien-holder's caveat may be withdrawn at any time by a

notice in writing given to the Registrar by the person or body for
the time being entitled to the benefit of the lien, and the Registrar
shall cancel the entry of the caveat as soon as may be after the
notice is received.(2) Where any land or lease subject to a lienholder's caveat is sold pursuant to an order of the Court made by
virtue of sub-section (2) of section 281 (a) any certificate of sale presented for registration by the
purchaser thereof shall be deemed for the purposes of this
Chapter to have been presented with the consent of the lienholder; and
(b) upon the registration of the certificate, the caveat shall lapse,
and the entry thereof be cancelled accordingly by the Registrar.
(3) The Registrar may cancel any lien-holder's caveat upon proof
to his satisfaction that all sums due under the lien have been duly

 (4) Where the Court is satisfied that any lien-holder's caveat ought not
to have been entered, or ought to have been withdrawn, it may order (a) the cancellation thereof by the Registrar, and
(b) if the entry or failure to withdraw has caused damage or loss to any
person or body, the payment of compensation by the person or body at
whose instance the entry was made or, as the case may be, by whom
the withdrawal ought to have been effected.
(5) On cancelling the entry of any caveat pursuant to this section, the
Registrar shall note on the register document of title the reason for the
cancellation and the date thereof; and where any such entry is
cancelled by reason of the withdrawal of the caveat, the Registrar shall
give notice of the withdrawal to the person or body for the time being
entitled to the land or lease formerly affected.
(6) Every cancellation under sub-section (5) shall be signed and sealed

Section 332. Nature and effect of trust caveats.

(1) A caveat under this section shall be known as a "trust
caveat", and may be entered by the Registrar in respect of any land or
interest which (pursuant to section 344, or any corresponding provision of
any previous land law) is expressed to be held by any persons or bodies as
trustees.(2) The effect of any trust caveat shall be precisely stated therein,
and may be to prohibit, either absolutely or except subject to conditions,
the registration, endorsement or entry of all or any of the following (a) any instrument of dealing, or class or description of instrument of
dealing, directly affecting the trust property;
(b) any claim to the benefit of any tenancy exempt from registration
granted directly thereout; and
(c) any lien-holder's caveat in respect thereof:
Provided that no such caveat shall prohibit the registration of any
instrument which was presented prior to the time from which it takes
effect, or the endorsement or entry of any claim or lien-holder's caveat
where the application for endorsement or entry was received prior to that
time.
(3) Where the registration of any instrument or the endorsement or entry
of any claim or lien-holder's caveat is prohibited by any trust caveat, the

Section 333. Creation of trust caveats and duration thereof.

(1) The registrar may enter a trust caveat on the application of (a) the trustees for the time being of any land or interest; or
(b) the person or body by whom any land or interest is first transferred to trustees; or
(c) the person or body by whom any interest is created in favour of trustees.
Provided that no application made by virtue of paragraph (b) or (c) shall be entertained unless it is presented
to the Registrar with the instrument transferring or creating the land or interest in question.
(2) Any application for the entry of a trust caveat shall be in Form 19E, duly attested in accordance with the
provisions of section 211, and shall be accompanied by the prescribed fee.
(3) The Registrar shall note on any such application the time at which it was received (being, in the case of
any application sent by post, the time at which it was withdrawn from its cover in the Registry or, as the case
may be, Land Office) and, subject to the proviso to sub-section (1), shall, as soon as may be thereafter, enter
the caveat applied for on the register document of title to the land in respect of which, or an interest in
which, it is to have effect.
(4) The entry of a trust caveat on any register document of title shall be effected by the endorsement
thereon, under the hand and seal of the Registrar, of the words "Caveat (Trust)", together with a statement
specifying (a) whether the caveat is entered in respect of the land itself, or a particular interest only;
(b) the precise effect thereof;
(c) the time from which it is effective (being the time of receipt of the application for its entry, as noted on
the application pursuant to sub-section (3)); and
(d) the reference under which the application is filed.
(5) A trust caveat shall continue in force until cancelled by the Registrar on an application in that behalf by
the trustees for the time being and all persons and bodies beneficially entitled under the trust.

(6) On cancelling a trust caveat pursuant to sub-section (5), the Registrar shall endorse against the cancelled
caveat a note of the date of cancellation.

(7) Every endorsement under sub-section (6) shall be signed and sealed

 Section 334. "prohibitory order".

"prohibitory order" means, court order
where land or an interest in land held by a
judgment-debtor is to be sold in execution
proceedings, an order made pursuant to
rules of court by a court of competent
jurisdiction prohibiting the judgmentdebtor from effecting any dealing
therewith or from effecting such dealing
therewith as may be specified in the order

Section 335. Prohibitory orders ineffective until entered by

Registrar.
(1) No prohibitory order shall take effect
until it has been entered by the Registrar, in accordance with the
provisions of this section, on the register document of title to the
land to which, or an interest in which, it relates:Provided that this
section shall not apply to any such order which has been
registered before the commencement of this Act under the
provisions of any previous land law.(2) When a copy of a
prohibitory order is presented to the Registrar for registration, it
shall be the duty of the Registrar to enter the order forthwith by
endorsing on the said register document of title, under his hand
and seal, the words "Prohibitory Order", together with a statement
specifying (a) whether the order relates to the land itself or merely a
particular interest therein;
(b) the time at which the entry was made; and
(c) the reference under which the copy of the order is filed

Section 336. Effect of prohibitory orders.

(1) The effect of any prohibitory order duly entered on any register document of title
and expressed to relate to the land itself shall, subject to sub-section (3) of this
section and to sub-section (2) of section 337, be to prohibit so long as it continues in
force the registration, endorsement or entry thereon of (a) any instrument of dealing executed by or on behalf of the proprietor thereof (but
not any certificate of sale relating thereto);
(b) any claim to the benefit of any tenancy exempt from registration granted by the
said proprietor; and
(c) any lien-holder's caveat in respect thereof.
(2) The effect of any such order duly entered as aforesaid and expressed to relate to
a particular interest only shall, subject to sub-section (3) of this section and to subsection (2) of section 337, be to prohibit so long as it continues in force the
registration, endorsement or entry on the register document of (a) any instrument of dealing, other than a certificate of sale, directly affecting that
interest; and
(b) where that interest is a lease or sub-lease (i) any claim to the benefit of any tenancy exempt from registration granted directly
thereout, and
(ii) any lien-holder's caveat in respect thereof.
(3) A prohibitory order shall not prohibit the registration, endorsement or entry of any
instrument, claim or lien-holder's caveat where the instrument was presented, or the
application for endorsement or entry received, prior to the time from which the order
takes effect.
(4) Where the registration of any instrument, or the endorsement or entry of any

 Section 337. Sale of land or interest subject to

prohibitory order.
(1) No sale of any land or interest for the purpose of
satisfying any judgment debt shall become absolute
until it has been confirmed by an order made pursuant
to rules of court; and any such order shall be sufficient
authority for an officer of a court of competent
jurisdiction to execute in favour of the purchaser at the
sale the appropriate instrument of transfer under this
Act in the name, and on the behalf, of the judgmentdebtor.(2) The prohibition imposed by any prohibitory
order shall not apply to any such instrument of transfer.

 Section 338. Lapse of prohibitory order by expiry of time.

(1) Every prohibitory order shall, unless its duration is extended by
an order made pursuant to rules of court, lapse at the expiry of six
months from the date on which it was made or at the end of such
other period as may be specified by rules of court.(2) An order
extending a prohibitory order shall not have effect unless a copy of
the order is presented for registration before the time at which the
prohibitory order to which it relates would, but for the extension,
have lapsed.(3) A note of the extension of any prohibitory order
shall be endorsed by the Registrar on the register document of title;
and the Registrar may of his own motion, and shall on the
application of any interested person or body, cancel the entry on
any register document of any prohibitory order which has lapsed by
virtue of this section.(4) Every endorsement or cancellation under
sub-section (3) shall be signed and sealed.

 Section 339. Other methods of determination.

(1) Where a prohibitory order is withdrawn at any time by order of a court, the
Registrar shall, on receiving a copy of the order of withdrawal, cancel the entry on the
register document of title, and note thereon the reason for the cancellation and the
date thereof.(2) A prohibitory order shall cease to have effect, and the entry thereof
be cancelled accordingly, on the registration of (a) any transfer executed by an officer of a court as mentioned in sub-section 337 (1);
or
(b) any certificate of sale given under sub-section 259(3)or sub-section 265(4)and
relating to the land or interest affected by the order.
(3) The Registrar shall notify the Court of any cancellation effected on the registration
of any certificate of sale and, in any such case, any residual sums to which subsection 268(3) would otherwise apply shall be disposed of in accordance with rules of
court.
(4) Every cancellation effected by the Registrar under this section shall be signed and
sealed.
(5) References in this section to an order withdrawing a prohibitory order include
references to any order cancelling a prohibitory order or otherwise causing it to cease
to have effect.