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2009 CONVEYANCING DEVELOPMENTS
Report back on the 2008 Registrars’ Conference
by Michele Holland
I recently attended a seminar hosted by L.E.A.D. and presented by Mr Allen West, lecturer and author of numerous legal texts and opinions, which provided feedback from the Registrars’ Congerence held at the end of 2008.
The purpose of the annual Registrars’ conference, held in the Free State Province, is to bring uniformity to the registration process in Deeds Registries across the country. This message was reiterated in the opening address by the Chairperson of the conference, Mr Sam Lefafa, Chief Registrar of Deeds.
Mr Lefafa stated that ALL Registrars and their staff are bound by the decisions taken at the conference, which become effective from 2 JANUARY 2009 in terms of Chief Registrars Circular (CRC) 16 of 2005.
Seventy resolutions were taken in terms of day to day Conveyancing practice, and each is briefly discussed hereunder:
A. WITHDRAWAL OF PREVIOUS REGISTRARS’ CONFERENCE RESOLUTION
1/2008 The following Registrars’ Conference Resolutions (RCR) are hereby withdrawn:
RCR 2/2003
RCR 3/2003
Comments:
In respect of a sale only, the Master will appoint an Executor if the vale of the estate is over R5 000,00.
B. AMENDMENT OF REVIOUS REGISTRARS’ CONFERENCE RESOLUTION
2/2008 (RCR 37/2007) Property sold by Executor
“RCR 37/2007 Act 66 of 1965 – Property sold by Executor on death of fiduciary
Does conference agree that a Section 42(2) of Act 66 of 1965 endorsement is all that is needed when an Executor in the estate of a fiduciary sells and transfers immovable property, which is subject to a fideicommissum?
Resolution:
A Section 42(2) Act 66 of 1965 endorsement by the Master is necessary [provided the fideicommissary heirs have waived their rights].”
Resolution:
It is established practice that the Executor in the estate of the fiduciary has the right in terms of the Administration of Estates Act No. 66 of 1965 to sell immovable property directly fro the estate of the fiduciaries, provided the Master affords and authorisation in terms of Section 42(2). The waiver by the fideicommissary heirs is not a prequisite for the sale.
RCR 37/2007 is amended by the deletion of the words “provided the fideicommissary heirs waive their rights”.
Comments:
No waiver is required from the fideicommissary heirs, only the authorisation in terms of Section 42(2) is necessary.
Note that this is in terms of the transfer of the whole property, not only limited rights.
C. PREVIOUS REGISTRARS’ CONFERENCE RESOLUTIONS
3/2008 (RCR 29(1)/1966) Section 68 of Act No. 47 of 1937
Must the owner of the land comply with the provisions of Section 68(1) of Act No. 47 of 1937 where a personal servitude (usufruct) lapses by merger, or does conference confirm RCR 29(1)/1966?
Resolution:
RCR 29(1)/1966, reading as follows, is CONFIRMED:
“RCR 29(1)/1965
1937/47/3(1)(o): Lapses of servitudes; Myers v Van Heerde 1966 2 SA 649 C
(1) Where there is a lapse of a personal servitude by death, merger, or otherwise, must a Registrar note the lapsing in all his registers and not on the title deed? Compare s 3(1)(c) as read with s 3(1)(y) and the words “note on the title” in s 68(1).
(2) Is there conflict between s 3(1)(c) as read with s 3(1)(y) on the one hand and s 68(1) on the other?
Resolution:
(1) In regard to the lapsing of a personal servitude a Registrar will not initiate proceedings under s 68(1). Where, however, the holder of the servitude acquires the bare dominium (or vice versa) the resultant merger is automatically noted. Wherever a lapsing servitude is noted, the appropriate entries are made in the registers concerned.
(2) A Registrar does not take the initiative under S3.”
4/2008 (RCR 1/1991) Proof regarding erection of buildings
In RCR 1/1991 it was held that the Sectional Plan of Extension may be registered subsequent to the lapsing of the duration of the right of extension relating to that scheme, provided the buildings have already been erected. What proof must be submitted to the Registrar of Deeds to prove that the building(s) were erected prior to the date of lapsing?
Resolution:
A certificate from the Local Authority that the buildings were erected prior to the date of the lapsing of the right of extension must be lodged.
Comments:
· A Conveyancer’s certificate WILL NOT be accepted – the certificate MUST be issued by the Local Authority
· No reference to the lapsing needs to be made in the certificate from the Local Authority.
· The Right of Extension must be cited in the Agreement of Sale, and the Conveyancer must check the date of lapsing, and word the s 15(b)(3) certificate accordingly.
· When the time period in respect of the right of extension lapses, the right of extension reverts to the Body Corporate and is then transferred back to the Developer.
5/2008 (RCR 6.5/1999) Section 93 of Act No. 47 of 1937
In terms of RCR 6.5/1999 a copy of the Government Gazette must be lodged as proof for an application for change of name in terms of s 93 of Act 47 of 1937. Must this resolution still be applied?
Resolution:
RCR 6.5/1999, reading as follows, is CONFIRMED:
“6.5 Section 93(1) –
Section 93 provides that if a person or partnership has changed his or her name, the Registrar of Deeds shall upon written application by that person or partnership, accompanied by proof of the change of name, endorse the deed or other document re the change of name.
This office is of the opinion that a copy of the new identity document will be sufficient proof of the change of name. Does the conference agree?
Resolution:
Conference does not agree with the proposal, but confirms the present rule, i.e. lodgement of a certified copy of the relevant notice in the Government Gazette.”
Comments:
· Change of name of a Trust : obtain proof from the Master.
· Change of name of a Company or Close Corporation : name is changed in terms of Companies or Close Corporation Act.
· Change of name of Sectional Title scheme : name can only be changed by order of Court.
· Double-barrelled surname : S 93 applies, but no Government Gazette required. Provide copy of new identity document, application in terms of s 93, and confirmation from Director-General of Home Affairs instead of Government Gazette.
6/2008 (RCR 29/2002) Incorporating restrictive / Homeowners’ Association conditions contained in s 11(3)(b) schedule in new Deed of Transfer
The s 11(3)(b) schedule of conditions must be checked to ascertain whether there are restrictive conditions. If there are restrictive conditions, the Conveyancer must lodge the necessary consent, authorisation or clearance. If such conditions are not as yet contained in the title deed, must the Conveyancer incorporate them in the Deed of Transfer?
Resolution:
RCR 29/2002, printed below if CONFIRMED. When a Sectional Title Register is opened and restrictive conditions exist and/or are imposed in terms of s 11(2) of the Act, such conditions must be incorporated in the Certificates of Registered Sectional Title and brought forward into all successive Deeds of Transfer. In respect of existing schemes where the conditions were not brought forward into the title deeds, it must be brought forward into the new title deed.
“RCR 29/2002 – Section 11 of Act No. 95 of 1986
How must restrictive conditions applicable to Sectional Title schemes be given effect to?
Resolution:
Homeowners’ Association conditions and other restrictive conditions pertaining to the particular section should be included in the Form H of Act 95 of 1986 Deeds of Transfer. Each examiner must examine the s 11(3)(b) schedule and indicate on the back cover whether there are any restrictive conditions.
The implementation of this should be managed by a Registrars’ Circular issued by each and every Registrar.”
Comments:
· The Registrars’ Circular in KwaZulu-Natal has still to be issued.
· Restrictive conditions = Homeowners’ Association conditions, usufructs, etc.
· Make an allowance in the Deed of Transfer of CRST for the insertion of restrictive conditions.
7/2008 Regulation 45(1) of Act No. 47 of 1937
How must the phrase “Conveyancer practicing at the seat of the Deeds Registry” in Regulation 45(1) of Act No. 47 of 1937 be interpreted insofar as boundaries or radius from a Deeds Registry is concerned?
Resolution:
RCR 18/2003, reading as follows, is CONFIRMED:
“RCR 18/2003 – Regulation 45(1)
Uncertainty exists as to the meaning of the word “seat” in Regulation 45(1) of the Act.
Resolution:
The word “Seat” is not defined in Act No. 47 of 1937. Deeds Registries must be guided by the definition of “Deeds Registry” in Section 102 of the Act. The status quo with regard to lodgement and execution of deeds must remain.”
Comments:
· In terms of the Act, “seat” is deemed to be within 8 (EIGHT) kilometres of the Deeds Office.
· It was mentioned that the possibility exists that Conveyancers may soon be able to lodge documents in any Deeds Office from anywhere, however, this has yet to be discussed at a future conference.
8/2008 (RCR 7/2005) Reference to Company Resolutions
Is there a need to make reference to a resolution or Power of Attorney in deeds and documents?
Resolution:
RCR 7/2005, reading as follows, is CONFIRMED:
“RCR 7/2005 (RCR 1/1988 – Reference to Company Resolutions)
In terms of Regulation 44A(d)(ii)(aa) of Act 47 of 1937 it is no longer a requirement to refer to the Company Resolution in the Power of Attorney or any other document.
Resolution:
The preparer does not assume responsibility in terms of Regulation 44A(d)(ii)(aa) for the mandate in terms of a General Power of Attorney (see reference to Regulation 65 in Regulation 44A(d)(ii)(aa)). Thus it is still the responsibility of the Registrar of Deeds to check the General Power of Attorney referred to in the preamble of a Special Power of Attorney or consent. The preamble must state whether the authorisation is in terms of a Resolution or General Power of Attorney (without providing full particulars of the Resolution). (RCR 1/1988 has been withdrawn).”
9/2008 (RCR 5.2007) Proof of unnamed testate heirs
The Master only requires that a next of kin affidavit be filed in cases where the deceased did not leave a valid will. There are cases where wills bequeath property to “my child or children”. How should these children be proved? RCR 5/2007 provided that a next of kin affidavit must be called for to prove heirs (testate or intestate). What if there is no next of kin affidavit filed with the Master? Can the liquidation and distribution account be accepted as proof?
Resolution:
A next of kin affidavit must be lodged. The liquidation and distribution account is not acceptable.
Comments:
Only a certified copy of the affidavit by the Master is acceptable so as to be the same as that lodged with the Master.
10/2008 (RCR 13/2005) and (RCR 9/2007) Rates clearance certificates for vesting transfers
In terms of RCR 13/2005, as confirmed by RCR 9/2007, a rates clearance certificate is a requirement for an expropriation transfer, however, with regard to vesting transfers, the provisions of Section 20 of Act 63 of 1975 is not applicable and thus rates clearance certificates should not be insisted upon in such circumstances. Does conference concur?
Resolution:
Conference does not concur. A rates clearance certificate must be insisted upon with all vesting transfers, unless exempt in terms of Section 118 of Act 32 of 2000.
11/2008 (RCR 30/2005) Vis-a-vis CRC 3/1983
RCR 30/2005 contradicts CRC 3/1983. Which authority must be followed:
Resolution:
RCR 30/2005 must be followed. (CRC 3/1983 will be amended).
Comments:
· CRC 3/1983 has since been repealed by CRC 2/2009 (see Annexure “B” hereto).
· No changes to the properties or the parties by amendment may be done on an Agreement of Sale – the Agreement must be re-typed.
· Substitution of Debtor in terms of s 40(3) where 2 properties, each with a bond, are consolidated = ACTIVE REGISTRATION. Consent to consolidation and application in respect of consolidation required by existing bondholders.
· Substitution of Debtor in terms of s 40(5) where 1 bond on 1 property is being consolidated = NON-ACTIVE REGISTRATION. Application in respect of consolidation required.
12/2008 (RCR 35/2005) and (RCR 2/2006) Restriction on alienation
Certain offices do not apply RCR 35/2005 which related to a request for a consent when mortgaging land. Is the ruling peremptory or merely directory?
Resolution:
RCR 35/2005 as amended by RCR 2/2006, reading as follows, is confirmed and must be applied uniformly.
“RCR 2/2006 (RCR35/2005) – Interpretation of the concept “alienate”
What is the correct interpretation of the concept “alienate” as including mortgage?
Resolution:
Mortgage is the “first step” to alienation. It must be regarded as sui generis and is treated as if it is alienation. Thus, where a title deed contains a restraint on alienation, the person in whose favour such restraint is registered must consent to the hypothecation of the relevant property.
See Foley’s Trustees v Natal Bank (1882) 3 NLR 26 and Ex Parte De Jager (1926) 27 NLR 413”
Comments:
Documents will be rejected without the consent from the restricting party.
13/2008 (RCR 21/2006) Circumstances under which deeds are lost
Reference to the fact that the circumstances under which the deeds were lost are not known, need not be disclosed in the application. Regulation 68(1) stipulates that the circumstances must be mentioned where possible. If the fact that the circumstances are unknown is not mentioned in the application, it may be interpreted that the applicant ignored the fact that the circumstances must be mentioned. How will the examiner know whether the circumstances are unknown, or whether the circumstances are known, but not mentioned? This will result in the examiner raising notes to include the circumstances when nothing in this regard is mentioned.
Resolution:
RCR 21/2006, reading as follows, is CONFIRMED:
“RCR 21/2006 – Regulation 68(1)
Regulation 68(1) provides that the circumstances must be mentioned in the application. What if the circumstances are not known? Can it be omitted from the application or must it be stated that the circumstances are unknown?
Resolution:
Reference to the fact that the circumstances are not known need not be disclosed in the application.”
Comments:
An application in terms of Regulation 68(1) in respect of documents cannot be made if the documents in question are still lodged in the Deeds Office. A reasonable amount of time must elapse before the documents are presumed lost.
14/2008 (RCR31 2006) Abbreviation of registration number, Companies, Close Corporations, Trust, etc.
The following abbreviations are used in deeds and/or documents:
Registration Number / Reg number / Registration No / Nr / Registrasienommer / Reg No. Which are acceptable?
Resolution:
Abbreviations with regard to registration numbers of Companies, Close Corporations, Trust, etc are NOT permissible in deeds and documents tendered for registration.
Comments:
· This also applied to identity numbers. ID No. CANNOT be used – must be Identity Number.
· The ONLY abbreviations which are acceptable are CC (Afrikaans: BK) for Close Corporations and Pty Ltd (Afrikaans: Edmns Bpk) for Companies in terms of CRC and Deeds Office Practice Manual.
15/2008 (RCR 44/2008) Proof of VAT on Land Reform Transfers
The resolution taken is confusing as it is open to two different interpretations. Is proof required or not?
Resolution:
No.
Comments:
No VAT is payable in terms of SARS directive. Obtain schedule from SARS setting out which transactions are exempt.
16/2008 (RCR 15/2007) Reversionary Rights and Pre-emptive Rights
Uncertainty prevails as to what practice should be followed when cancelling reversionary rights and pre-emptive rights. Is an underhand waiver acceptable, or should the provisions of Section 68(1) of Act No. 47 of 1937 find application?
Resolution:
RCR 15/2007, reading as follows, is CONFIRMED:
“RCR 15/2007 – Application of Section 68(1)
Where a personal servitude has lapsed and the land encumbered thereby is transferred, is it peremptory to request an application in terms of s 68(1), or will the documentary proof lodged as a supporting document suffice?
Resolution:
Section 68(1) must be complied with in all instances where a personal servitude lapses for any reason.”
Comments:
· Reversionary right eg. = Building to value of ? to be erected within ? period, failing which the property reverts to ?.
· Lodge 68(1) application where right has lapsed – this can be lodged by a Conveyancer provided he has perused proof of lapsing (the client does not need to sign the 68(1) application).
· Exception (Applicable to KwaZulu-Natal ONLY): If a reversionary right has lapsed by fluxion of time, no proof is required.
17/2008 (RCR 42/2007) Lapsing of Right of Extension of Sectional Title Scheme
RCR 42/2007 must be revisited as it causes undue hardship in case of transfers and bonds
Resolution:
RCR 42/2007, reading as follows, is hereby CONFIRMED:
“RCR 42/2007 – Right of Extension and Section 15B(3) Certificates
Is it the duty of the Registrar of Deeds to check the right of extension on transfer of a unit to determine of same has lapsed, and if so, how must the 15B(3) Certificate be couched, or must Section 68(1) be complied with, where same has lapsed?
Resolution:
No, it is not the duty of the Registrar of Deeds to check the right of extension on transfer of a unit. It is the duty of the Conveyancer to determine whether or not the right of extension has lapsed. If it has been determined that such right has lapsed, then a Section 68(1) application by the Body Corporate must be lodged.
The 15B(3) Certificate must reflect that a right of extension has been registered, but that such right has lapsed.
Comments:
· The Conveyancer MUST determine whether the right of extension has lapsed.
· If the right of extension has lapsed, the Conveyancer MUST obtain a 68(1) application from the Body Corporate or the Developer.
D. DEEDS REGISTRIES ACT NO. 47 OF 1937
18/2008 Section 4(1)(b) of Act 47 of 1937
Should the use of the words “the error” in s 4(1)(b) of Act No. 47 of 1937 be interpreted that only one error per application can be amended or is it possible to amend multiple errors with one application? What if different errors occur in different titles?
Resolution:
Multiple errors may be amended in one application, albeit different errors in different titles.
Comments:
· Each 4(1)(b) application carries a cost of R110,00.
· The application is brought by the Conveyancer – DO NOT make oath on behalf of the client.
· Oath not necessary from client for changes in respect of:
· Registration Division, so long as proof is provided;
· Name, ID number, etc, - provide copy of ID as proof.
19/2008 Section 4(1)(47b) of Act No. 47 of 1937
Is it a requirement that a Conveyancer must be “duly authorised” in terms of a Power of Attorney to bring an application in terms of Section 4(1)(b) of Act No. 47 of 1937?
Resolution:
No, a Conveyancer need not be “duly authorised” in terms of a Power of Attorney.
Comments:
A Conveyancer may bring the application so long as he/she is in possession of documentary proof.
20/2008 Section 34 of Act No. 47 of 1937
Where an owner of the whole or a share in land wishes to fractionalise his/her title, may such owner apply the provisions of Section 34(1) as his/her common law right or must he/she be co-owner to apply it?
Resolution:
No, it should not be allowed until such time as the Act has been amended.
Comments:
One person (sole owner) of property wants 50 separate titles (fractionalisation) – this cannot be done unless person is co-owner (instead of sole owner).
21/2008 Section 40 of Act No. 47 of 1937 – Tie- Conditions
Where two pieces of land are consolidated and the components are subject to a tie-condition, how should such condition be dealt with? Does lapsing occur or must Section 68(1) find application?
Resolution:
Section 68(1) is not applicable. The condition must be perpetuated in the Certificate of Consolidated Title and the Registrar must endorse the Certificate of Consolidated Title as to the lapsing of the tie-condition. However, the holder of the right must consent to the issuing of the Certificate of Consolidated Title.
Comments:
In the instance where two properties joined by Notarial tie are consolidated, the Notarial tie lapses. The person in whose favour the Notarial is registered will have to consent to the consolidation. Bring the condition forward and the Deeds Office will endorse the deed.
22/2008 Section 45bis(1A)(b) of Act No. 47 of 1937 – Change of Matrimonial Property Regime
A right of extension is registered in the joint estate of parties married in community of property. The parties change their matrimonial property regime in terms of Section 21 of Act No. 88 of 1984 to out of community of property, and the court orders that the right of extension be divided equally between the spouses. The provisions of Section 45bis(1A)(b) cannot be invoked vide RCR 15/2006. How must registration occur as applying the provisions of Section 25(4) will lead to absurdity?
Resolution:
The status quo followed in the Deeds Offices must remain, pending the amendment of Act No. 47 of 1937.
Comments:
See CRC 1/2009 (Annexure “A” hereto)
E. REGULATIONS TO ACT NO. 47 OF 1937
23/2008 Regulation 35(1) of Act No. 47 of 1937
According to Jones, the “State reservation clause” must be omitted when transfer is effected to the Republic of South Africa. Does Conference agree and must this clause be omitted if transfer is effected to Provincial Government and Local Government?
Resolution:
The State reservation clause must be omitted where transfer is effected to National and Provincial Government, but not a transfer to Local Government.
24/2008 Regulation 84 – Registration Fees for Leasehold Transfers
The initial registration of a leasehold transfer is exempt from the payment of a registration fee, however, uncertainty exists as to whether the subsequent transfers of leaseholds are also exempt from the payment of a registration fee.
Resolution:
ALL leasehold transfers are exempt from the payment of a registration fee in terms of Section 52(15) of the Black Communities Development Act No. 4 of 1984.
Comments:
A registration fee will be charged for linked transactions (bond, cancellation).
25/2008 Regulation 84 – Fee on General Power of Attorney
What fee is payable for the issuing of a copy of a General Power of Attorney? Is it deemed to be a document or a deed, as per the Schedule of Fees?
Resolution:
A General Power of Attorney is deemed to be a document and must be charged the fee as prescribed under Item 3(a)(ii) of the Schedule of Fees.
Comments:
Fee is currently R6,00
26/2008 Regulation 84 – Share Block Conversions
What fee is payable where a Sectional Title transfer is being registered for the conversion of a Share Block to Sectional Title?
Resolution:
The registration fee as prescribed under Item 8(d) must be charged.
Comments:
R110,00 flat fee payable in respect of value of shares.
F. GENERAL
27/2008 Registration of Foreign Antenuptial Contract
In terms of Ex Parte Van Borselen et Uxor 1942 TPD 206, where a foreign Antenuptial Contract is lodged for registration, it is held that an affidavit from a practicing lawyer, solicitor or barrister from such foreign country must be lodged confirming that the contract is in accordance with the law where it was signed. Is this practice still upheld?
Resolution:
Yes, this practice is still upheld.
Comments:
Foreign marriage contract can be registered in any Deeds Office, but must be accompanied by an affidavit by an attorney of that country.
28/2008 Donation in Antenuptial Contract
Where a donation is contained in an Antenuptial Contract, which donation only becomes effective on the death of the donor, must a caveat be noted for purposes of VAT as no transfer duty is payable?
Resolution:
Yes, a caveat must be noted with regard to the donation in light of Section 92 of Act No. 47 of 1937.
29/2008 Proof of Adiation / Repudiation
Who has the capacity to adiate or repudiate the terms of a joint will should the surviving spouse die before exercising such option?
Resolution:
In terms of Eyssell and Another v Barnes NO and Others, Unreported Case 3617/1992 handed down by the High Court NPD, it was held that the power to adiate or repudiate vests in the heirs and NOT the executor.
Comments:
In terms of Section 15(2)(b), a Conveyancer’s Certificate is sufficient proof of adiation / repudiation.
30/2008 Cancellation of Mortgage Bond
Where it is endeavoured to cancel a mortgage bond, but on closer perusal it is determined that the bond is passed by the mortgagor in favour of the “mortgagor”, can such cancellation be effected by the “correct mortgagee” where a Section 4(1)(b) amendment is brought by such “correct mortgagee”?
Resolution:
Proof as to the correct situation must be called for in terms of Section 4(1)(a) of Act No. 47 of 1937. The bond must then be amended with a Section 4(1)(b) application made by the “correct mortgagee”, whereafter such bond must be cancelled. The consent of all interest parties must be insisted upon.
Comments:
Eg. A bond is passed by “A” in favour of “A” in error.
This can be rectified with a 4(1)(b) application provided all parties consent and that documentary proof is provided. The bond is then cancelled by the correct party.
NOTE: Where amounts are incorrect in a bond, the bond must be cancelled and re-registered. This cannot be rectified by a 4(1)(b) application.
31/2008 Massing of estates of parties married out of community of property
Spouses are married out of community of property. They mass their estates and provide that on the death of the first dying, the land must devolve on the surviving spouse subject to a fideicommissum or FCR in favour of the children. What act of registration must be effected where the land is registered in the name of the surviving spouse?
Resolution:
An endorsement in terms of Section 3(1)(v) of Act No. 47 of 1937.
Comments:
· The Executor is to bring application in the Deeds Office in terms of Section 3(1)(v) of the Act.
· The terms of the will are to be recorded against the title deed.
32/2008 Application for certified copy of title deed
Who has the capacity to apply for a certified copy of a title deed registered in the name of a Company where the sole director of such Company has died?
Resolution:
The Executor may apply. It is the responsibility of the Conveyancer to determine whether the Executor has been entered into the register of directors of the Company (see Corporate Law by Cilliers, Bernardie, Botha, Oosthuizen and Delarey, 1987 edition, Chapter 11, Page 131).
Comments:
· The above is PROVIDED THERE ARE NO SHAREHOLDERS.
· The Executor will replace the deceased as director in the register.
· The transfer of property held by a Close Corporation or Company it to be effected in terms of the Close Corporations and Companies Act respectively where there is a change of Members/Directors.
33/2008 Identity Number and Status of Insolvent
It is established practice to disclose the identity number and status of an insolvent when the Trustee transfers land as a result of a sale in insolvency. However, the status may have changed since registration, and as the Trustee is the “owner”, the Conveyancer does not assume responsibility for the correctness thereof. Should the identity number and status as disclosed in the title deed be followed, or must the Registrar of Deeds assume responsibility for it?
Resolution:
The identity number and status as disclosed in the title must be followed:
Comments:
There is NO responsibility on the part of the Conveyancer as to the insolvent’s details.
34/2008 Copy of Power of Attorney
A certified copy of a Power of Attorney that has been registered in one office is lodged for registration in another office, and it is found to be unfit for registration. How must the matter be addressed?
Resolution:
The Power of Attorney must not be registered until the discrepancies have been addressed in the first office of registration. Alternatively, a new Power of Attorney must be registered.
Comments:
The Power of Attorney will be re-examined by the new Deeds Office and any problems must be rectified before certified copies can be lodged.
35/2008 Office Fees on Mortgage Bonds of First Rand Bank
Confusion occurs in determining the office fees pertaining to First Rand Bank bonds because the capital amount and the additional amount are added together and in some instances they are separated. Where the amounts are separated it is easy to determine the office fees. The problem arises when the capital amount includes the additional amount. Is it the duty of the examiner to subtract the additional amount from the capital amount in order to determine the office fees?
Resolution:
Item 8(b) must be amended to make reference to “A bond of which the capital amount”, as resolved by the Deeds Registries Regulations Board.
Comments:
The fee is charged “on actual amount lent”, ie. the capital amount WITHOUT the additional amount.
36/2008 Conditions to capitalise the amount paid for a servitude
Is a Notarial deed seeking to register a condition to capitalise the amount paid for a servitude contained in an already registered Notarial deed of servitude registerable?
Resolution:
Yes, in terms of Section 3(1)(o), read in conjunction with Section 3(1)(r) of Act No. 47 of 1937.
37/2008 Transfer of property in insolvent estate
Can the Trustee in an insolvent estate transfer property vested in the Trustee before the rehabilitation of the insolvent 10 years after the insolvent was automatically rehabilitated?
Resolution:
No. See the provisions of Section 25 of Act No. 24 of 1936.
Comments:
· Section 58(1) of Act No. 47 of 1937 – Transfer back to rehabilitated insolvent by formal transfer.
· Section 58(2) of Act No. 47 of 1937 – Transfer back to rehabilitated insolvent by endorsement if composition entered into between the parties in terms of the Insolvency Act No. 24 of 1936.
38/2008 Lost Notarial Deed
If an original Notarial deed of servitude is lost and the Deeds Office copy is also lost, but the protocol copy is still in possess of the Notary protocol copy, may a Deeds Registry copy be generated from the protocol copy?
Resolution:
A substituted Notarial deed cancelling the existing servitude and replacing the lost Notarial deed must then be registered.
Comments:
The protocol copy may never be updated (documents lapse, etc.) and there is no way for the Deeds Office to tell if there are changes to the Notarial deed.
39/2008 Effect of sequestration on property of the spouse of the insolvent married out of community of property
The notice of sequestration of an insolvent person, married out of community of property is also note against the solvent spouse. When the “solvent spouse” deals with his/her property, is a certificate from the Conveyancer that the sequestration does not apply to the solvent spouse sufficient?
Resolution:
No, a Trustee must issue a release.
Comments:
· The sequestration order will be noted against the spouse as well.
· “Spouse” defined as “any person living together as husband and wife”.
· The Trustee is to release the spouse’s property from the operation of insolvency.
40/2008 General Power of Attorneys – Destroy or deliver after registration
Before microfilming was introduced in Deeds Registries, the Agent was without his/her instrument of appointment once the General Power of Attorney had been registered. The remedy for him/her was to apply for a certified copy. The question which now arises is whether the General Power of Attorney should be destroyed after scanning or whether it should be delivered to the firm?
Resolution:
Deeds Registries must destroy the General Power of Attorney after scanning to avoid further dealings with a Power of Attorney which may possibly already be revoked. The Power of Attorney is in any case not registerable in any other Deeds Registry.
Comments:
The Power of Attorney is to be endorsed that the document is a duplicate of the document lodged in the Deeds Office.
41/2008 General Power of Attorney granted by Bank / Company after registration of change of name / transfer of assets
Can an Agent appointed by a Bank / Company still act in terms of the Power of Attorney which was granted and registered by the Bank / Company which subsequently changed its name or transferred its assets to another entity?
Resolution:
(a) The Power of Attorney will terminate tacitly by the transfer to the new entity which is formed.
(b) The Power of Attorney will not terminate with a name change.
Comments:
Provided that there is documentary proof of change.
42/2008 Revocation of General Power of Attorney by virtue of a revocation clause contained in the new General Power of Attorney lodged for registration
Numerous General Powers of Attorney lodged for registration contain a clause revoking an existing Power of Attorney. Does Conference agree that a separate notice of revocation must be lodged to cancel the existing General Power of Attorney?
Resolution:
No, Conference does not agree. The registration of a General Power of Attorney and the revocation of an existing General Power of Attorney may be contained in the same document. In this instance the document will receive a PA code, which code will also be used for purposes of the cancellation of the existing General Power of Attorney. However, the revocation of an existing General Power of Attorney may be considered in a separate document constituting a separate act of registration.
Comments:
· A specific revocation clause in the new General Power of Attorney will suffice - cannot generally revoke all Powers of Attorney;
OR
· Lodge the revocation and lodge the new Power of Attorney.
43/2008 Notarial bonds noted against name of Mortgagor – Rehabilitation
A person registered Notarial bonds over his/her movable property and subsequently he/she was sequestrated. A few years later, she/she is rehabilitated. However, the Deeds Registry’s records still show the Notarial bonds registered against his/her name. He/She requests that the Deeds Registry “purge” the Notarial bonds from his/her name. Can it be done?
Resolution:
A Registrar of Deeds is under no obligation to “purge” the Notarial bonds noted against the name of a rehabilitated person’s name. The Mortgagee must consent to the cancellation of the Notarial bonds.
44/2008 Power of Attorney granted by Executor of estate original acceptable for transfer of property
Can a Registrar of Deeds accept an original Power of Attorney granted by an Executor of the estate or must it be a copy certified by the Master, the so-called “Estate Power of Attorney”?
Resolution:
Nothing prohibits the Executor from appointing someone to do certain things on his/her behalf. An original Power of Attorney is therefore acceptable.
Comments:
Where a person appoints his/her spouse as Executor but Master decided that the spouse is not qualified, am attorney must be appointed.
G. OTHER LEGISLATION THAT HAS AN IMPACT ON ACT NO. 47 OF 1937
45/2008 Section 55(b) of the Development Facilitation Act No. 67 of 1995
In terms of Section 55(b) of the Development Facilitation Act No. 67 of 1995, a sub-divisional diagram and a plan must be submitted for subdivisions under Chapter VI. This appears ludicrous as the diagram(s) would appear to suffice.
Resolution:
The sub-divisional diagram or the general plan must be lodged.
Comments:
See the Deeds Office Practice Manual.
46/2008 Section 18(3) of the Administration of Estates Act No. 66 of 1965
Presently uncertainty prevails as to whether the provisions of Section 80 of Act No. 66 of 1965 finds application in the instance where a minor is a party to a redistribution agreement and immovable property belonging to such minor forms part of the distribution. According to the legal opinion dated 23 November 1981 by the State Law Advisors under reference 12/4/3 R/C, Section 80 of Act No. 66 of 1965 does find application. This opinion is supported by the ruling in the decision of In re: Boedel wyle P M Venter 15068/80 Case No. 6647/84 dated 19 April 1984 (unreported). However, in the unreported case Ex Parte Faurd Tofie (C) Case No. 11191/89 dated 3 November 1989, the legal opinion was not supported. Deeds Registries do not follow a uniform practice in this regard and it is felt that a decision must be made as to what the practice should be.
Resolution:
The provisions of Section 80 of Act No. 66 of 1965 are applicable.
Comments:
· Also see unreported case Pronk v Master of the High Court.
· To determine whether parties to a redistribution agreement are competent, provide Ids and marital status affidavit to the Deeds Office.
49/2008 CRC 1/2005: Tutor / Curator acts in terms of the Mental Health Care Act No. 17 of 2002
CRC 1/2005 required that the provisions of Section 80 of Act No. 66 of 1965 be complied with where land is dealt with by a tutor / curator in terms of the Mental Health Care Act No. 17 of 2002. Does Conference concur?
Resolution:
CRC 1/2005 must be amended. However, the provisions of Section 63(4)(a) of Act No. 17 of 2002 must be invoked.
Comments:
· CRC 1/2005 has been amended by CRC 10/2008.
· Section 80 of the Act is not applicable – Section 63(4)(a) is applicable.
50/2008 Abolition of Certain Title Conditions Act No. 43 of 1999
Does Section 1(1) of Act No. 43 of 1999 also apply to conditions imposed in terms of Section 11(6) of the Advertising on Roads and Ribbon Development Act No. 21 of 1940?
Resolution:
No. In view of the exclusion from the application of the Act contained in Section 2 of the Abolition of Certain Title Conditions Act No. 43 of 1999, the Act cannot be applied for the removal of the conditions imposed in terms of Section of 11(6) of the Advertising on Roads and Ribbon Development Act No. 21 of 1940.
51/2008 Proclamation R.293 of 1962
Prescribed Form P of the said Proclamation requires the signature of the Magistrate and it creates confusion and complications.
Resolution:
The prescribed form must be followed.
Comments:
Pertains to ex-Ulundi transfers.
52/2008 Section 33(1) of Act No. 9 of 1989 – Legal succession to the South African Transport Services Act
Must a rates clearance certificate and transfer duty receipt be lodged for a transfer by endorsement in terms of Section 33(1)(c) of Act No. 9 of 1989?
Resolution:
(1) A rates clearance certificate must be lodged. See Section 118 of Act No. 32 of 2000.
(2) A transfer duty receipt does not need to be lodged. See Section 35 of Act No. 9 of 1989.
53/2008 Section 55 of the South African National Roads Agency Act No. 7 of 1998
Does Section 55 of Act No. 1998 exempt the Agency from lodging transfer duty receipts and rates clearance certificates?
Resolution:
Section 55 only exempts the Agency from transfer duty and not rates. A rates clearance certificate must therefore by lodged.
54/2008 Property bequeathed in trust
Scenario:
Johan Marais (A) is the testator and bequeaths property to the Mia Marais Testamentary Trust (B) and the Magdel Marais Testamentary Trust (C). Different properties are bequeathed to the two trusts. Transfer was effected by way of formal transfer, and not by means of a Section 40 of Act No. 66 of 1965 endorsement into the name of the two trusts. The Master registered the trust as the Johan Marais Testamentary Trust (D) (for the benefit of Mia and Magdel) and not as the Mia Marais Testamentary Trust and the Magdel Marais Testamentary Trust.
Questions:
1. In the event of the testator naming the testamentary trust (B and C), can the Master register a testamentary trust under a different name (D)?
2. How must transfer be effected? Is Section 40 of Act No. 66 of 1965 peremptory or can a formal transfer take place?
3. If the Master has issued Letters of Authority in favour of D, can transfer take place to this trust of all the property?
4. Is a Section 4(1)(b) amendment allowed to reflect the correct position?
Resolution:
1. Yes, it can be registered. See CRC 11/1995.
2. Section 40 is peremptory.
3. No. The Master will differentiate between the two beneficiaries.
4. A Section 4(1)(b) amendment is allowed to reflect the correct position.
Comments:
· Cancel the title deed, the property reverts back to the estate, then transfer the property.
· No resolution required as no detriment to the parties.
55/2008 Maintenance claims on behalf of minor children – Property transferred to children
It sometimes happens that the terms of a will are completely altered by virtue of a maintenance claim which was served on the Master’s office during liquidation of the estate by the guardian in terms of the Children’s Act No. 38 of 2005.
Which documentation (proof) must be lodged with an estate transfer / Section 40 of Act No. 66 of 1965 endorsement in favour of children originating from a maintenance claim against the parents’ estate? Will the Section 42(1) of Act No. 66 of 1965 endorsement (certificate) of the Conveyancer suffice?
Resolution:
The Section 42(1) of Act No. 66 of 1965 certificate will suffice. The recital of the deed / application must provide all the facts.
Comments:
· Causa to state that the property is transferred in terms of a maintenance claim.
· The Registrar can call for ANY type of proof at ANY time.
56/2008 Removal of Restrictions Act No. 84 of 1967
Is it possible to only impose new conditions without alteration, suspension or removal of existing conditions of the title deed in terms of the Removal of Restrictions Act No. 84 of 1967?
Resolution:
According to the wording of Section 2 of Act No. 84 of 1967 and the purpose of the Act, it is clear that it is not possible.
H. SECTIONAL TITLE ACT NO. 95 OF 1986
57/2008 Section 15B(3) of Act No. 95 of 1986 – Estate of Developer
Where the Executor in the estate of a Developer transfers a Section in a Sectional Title scheme to an heir, must the provisions of Section 15B(3)(c) be adhered to?
Resolution:
Yes.
Comments:
The Developer is still the transferor, and when deceased, the property is transferred to the heirs.
58/2008 Section 11(2) of Act No. 95 of 1986 – “Registerable conditions”
Section 11(2) of Act No. 95 of 1986 refers to “registerable conditions”. How should this be interpreted? Must the provisions of Section 63 of the Deeds Registries Act No. 47 of 1937 find application?
Resolution:
All the newly imposed conditions must be registerable in terms of Section 63 of Act No. 47 of 1937.
59/2008 Section 15B(3)(a)(ii) of Act No. 95 of 1986
Must Section 15B(3)(a)(ii) of Act No. 95 of 1986 be adhered to where the causa for the transfer of a Sectional Title unit is not a sale?
Resolution:
No, the provisions of Section 15B(3)(a)(ii) of Act No. 95 of 1986 need not be complied with.
Comments:
· It is very important for the Conveyancer to disclose proper information.
· Not applicable in the case where there is no Deed of Sale. Omit from Conveyancer’s Certificate.
60/2008 Section 25 of Act No. 95 of 1986 – Subdivision of real right of extension
A real right of extension is subdivided into numerous portions. How and when must the provisions of Section 68(1) of Act No. 47 of 1937 be applied for the purposes of the endorsement of the lapsing of the right on the Section 11(3)(b) schedule of conditions?
Resolution:
The 11(b)(3) schedule must only be endorsed in terms of Section 68(1) of Act No. 47 of 1937 when the whole of the right has lapsed.
61/2008 Section 25(2) of Act No. 95 of 1986 – Plans
Section 25(2) of Act No. 95 of 1986 sets out the requirements for the plans of extension where a right to extend is reserved. To ensure compliance with the technical requirements of such plans, can a Registrar of Deeds make it a requirement that a land surveyor architect certify that the plans that have been drawn are in accordance with Section 25(2)? Given the technical nature of the plans, the expertise lies with the land surveyor or architect, and it would place an unfair burden on the Registrar of Deeds to examine such plans.
Resolution:
Yes, Section 4(1)(a) of Act No. 47 of 1937 authorises the Registrar of Deeds to call for such certificate from the surveyor or architect with regard to compliance with Section 25(2)(a) and Section 25(2)(b) of Act No. 95 of 1986.
Comments:
· The Conveyancer MUST provide a certificate from a surveyor or architect stating that the plans are correct in terms of Sections 25(2)(a) and (b) – documents WILL BE REJECTED without certificate.
· In phased developments, a new certificate is to be lodged with each new phase.
· Section 25(2) certificates are now to be microfilmed.
62/2008 Section 27(2) of Act No. 95 of 1986 – Issue of Certificate of Real Right in respect of Exclusive Use Areas when opening a Sectional Title Register
Section 12(1)(f) of Act No. 95 of 1986 read with Regulation 28 and Section 27(1) provides for the issue of a Certificate of Real Right to Exclusive Use Areas that are delineated on the plan. Must this be interpreted that only one Certificate can be issued with the opening of the Sectional scheme, or can a Certificate be issued for each Exclusive Use Area? There is an opinion that in terms of the interpretation of statutes that singular includes the plural.
Resolution:
Pending the amendment to Section 12(1)(f), only one Certificate may be issued.
Comments:
The required amendment will be to allow for the issue of a Certificate for each Section.
63/2008 Section 27(1)(b) of Act No. 95 of 1986 - Cession of Exclusive Use Area by Developer
Does Conference agree that the causa of a Cession of an Exclusive Use Area when ceded in terms of Section 27(1)(b) should not indicate that the Exclusive Use Area forms part of the transaction (purchase price) whereby the specific Section was sold?
Resolution:
Conference does not agree. The way in which the causa currently reflects the Exclusive Use Area as forming part of the transaction must be continued.
Comments:
· If the purchase price includes the Exclusive Use Area, the Deed of Sale is to reflect as much.
· Eg. If Section 1 is bequeathed by a husband to a wife but no mention is made of the EUA, the EUA will revert to the Body Corporate, and can only be sold to a person who owns a Section in the scheme.
I. OTHER LEGISLATION WHICH HAS AN IMPACT ON ACT NO. 95 OF 1986
64/2008 Annexure 1 to Act No. 95 of 1986 – Form H
The footnote to Form H provides that in the description clause of the transfer of a Section, the description of the farm must be disclosed. Does this description include the Registration Division and the Province, or will the farm name and number suffice?
Resolution:
The full description, inclusive of Registration Division and Province is required.
Comments:
An example of a proper description of a farm:
Portion 1 of the Farm Elandsvlei No. 1
Registration Division FT
Province of KwaZulu-Natal
In extent 10,1234 (TEN COMMA ONE TWO THREE FOUR) hectares
J. OTHER LEGISLATION THAT HAS AN IMPACT ON ACT NO. 95 OF 1986
65/2008 Municipal Property Rates Act No. 6 of 2004 - Implementation of Local Government
Act No. 6 of 2004 will become fully operative on 1 July 2009. Does this result in the Act also being applied in respect of a “right registered against immovable property” (see Section 3)? If so, will this also include Exclusive Use Areas, Rights if Extension, etc?
Resolution:
Yes, the Act is clear. Where the right registered against immovable property is not rated, a clearance certificate from the local authority must be issued accordingly.
Comments:
· This includes EUAs, personal servitudes, rights of extension, etc.
· If the Local Authority cannot issue a certificate for any reason, it must provide a letter stating such.
· A separate rates clearance certificate must be issued for each property (eg. Section, EUA, Erf).
· REMOVE the phrase from the 15B(3) Certificate which states that the Section is rated separately – not necessary.
66/2008 Endorsement in terms of Section 42(2) of Act No. 66 of 1965
The Executor in the deceased estate sold the unit and the Exclusive Use Area in the Sectional Title scheme. Is it necessary that the Master endorse both the Deed of Transfer in respect of the unit and the Cession of the Exclusive Use Area in terms of Section 42(2) of Act No. 66 of 1965?
Resolution:
Where the Power of Attorney to Transfer the unit makes reference to the Cession of the Exclusive Use Area and such Power of Attorney is endorsed in regard to the Section 42(2) endorsement, it is not necessary to endorse the Notarial Deed of Cession of the Exclusive Use Area in this regard.
Comments:
Section 42(2) will apply to both.
K. GENERAL (ACT NO. 95 OF 1 986)
67/2008 Sectional Title Scheme opened on land that is mortgaged under a bond
Where a Sectional Title scheme is opened in respect of land that is mortgaged under a bond, which bond has numerous other pieces of land serving as security for the loan, may the bond be converted into a Sectional bond in respect of the land on which the scheme is being opened? If so, how will a variation of the terms of the bond be affected?
Resolution:
The bond is deemed to be converted into a Sectional bond in respect of the affected property only. It is not necessary for the release of the other properties from the operation of such bond. It is possible for the registration of a variation of conditions of the bond. The endorsement relating to the variation of the conditions must be qualified according to the properties affected.
Comments:
See Section 3(1)(5).
68/2008 Change of name of Sectional Title scheme
What procedure must be followed for a Sectional Title scheme to change its name?
Resolution:
The court must be approached, however the matter must also be referred to the Sectional Titles Regulations Board.
Comments:
There is no further resolution on this matter.
69/2008 Clearance Certificates
Where the common property of a Sectional Title scheme is alienated and Sectional are cancelled, must a Registrar of Deeds insist on a rates clearance certificate for the cancelled Section(s)?
Resolution:
No.
Comments:
The Section(s) no longer exist therefore no certificate is required.
70/2008 Sectional Titles – Clearance Certificates
In some cases the valuation roll of the Municipalities are incomplete in respect of some Sectional Title schemes. Is it correct to only rely on a Conveyancer’s Certificate in terms of Section 15B(3)(b) stating that “no provision is made as yet for the separate rating of the unit”, or must the Municipality themselves give a certificate to this effect.
Resolution:
· The Municipality must give a certificate, not the Conveyancer.
· The Deeds Office will accept whatever date is on the rates clearance certificate.
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