Deceased developer – a response
17 February 2011
- In response to Deceased developer ("the article"), my observation is that the question answered by Registrars' Conference Resolution No. 83 of 2010 ("the Resolution") should properly be answered in the administration of deceased estates, as opposed to conveyancing - refer to paragraph 3 below. However, I am satisfied that, as a general answer to a general question, the Resolution cannot be faulted. It is noteworthy, in particular that in the question posed, there is no mention of the sale of one or more units by the developer.
- Even if a developer dies subsequent to his sale of a Sectional Title unit, but before applying for the opening of a Sectional Titles Register in respect thereof, he cannot be the registered owner of the unit, at the time of his death, because registered ownership is an essential element of the definitions of developer and owner in section 1 (1) of the Sectional Titles Act, 1986 (Act No. 95 of 1986), as amended, ("the STA"). Therefore, the fact that a unit is deemed to be immovable property in terms of section 3 (4) of the STA is not sufficient, in the absence of registered ownership in such immovable property. A developer becomes the registered owner of the unit only upon the issue to him of a certificate of registered sectional title under section 12 (1) (d) of the STA.
- It is important to point out that, in paragraph (a) of the definition of owner in section 1 (1) of the STA, the executor referred to therein is an owner only if he or she "is acting within the scope of his or her authority". This qualification, alone, implies that there are limitations to what an executor of an estate of an owner who has died may or may not do.
- In view of the fact that, in the circumstances, the developer is not the registered owner of the units, actually, it is the land, of which he is the registered owner, as contemplated in the definition of developer in section 1 (1) of the STA, that would qualify as property for inclusion in the inventory made in terms of section 9 of the Administration of Estates Act, 1965 (Act 66 of 1965), as amended.
14 February 2011