The question begging an answer is how does a registrar of deeds resolve a scenario where the same land is registered in the name of one person under two different title deeds, by reason of an error in registration? It goes without saying that unless this scenario is resolved neither of the two title deeds will be recognized as definite proof of ownership for further transactions in the real estate industry.
A more tenable approach, though cumbersome, is to invoke section 6 of the Deeds Registries Act 47 of 1937 (the Act) and apply to court for an order cancelling the most recent title deed and consequently reviving the title issued prior to the one to be cancelled, (section 6(2)). This scenario is more prevalent in registrations of transfers involving the State’s integrated residential development plan (IRDP).
With a transaction lodged at the Pretoria deeds registry an application was made for a certificate of registered title in terms of section 39(1) the Act to remedy the error described above. It is submitted that reliance on section 39(1) is incorrect given that section 39(1) provides that it can only be invoked “if ... the same land has been registered in the names of different persons . .“. The section further provides that the registrar may issue the certificate of registered title “upon transfer of the land being given to one of them ...“. In this transaction the same land is registered in the name of one person under two title deeds by reason of an error. The maxim “inclusio unius est exclusio alterius” (inclusion of the one means the exclusion of the other) finds relevance in the application of section 39(1)of the Act.
The registrar of deeds being a creature of statute deriving all his/her powers from a statutory framework should exercise circumspection and avoid any interpretation which extends beyond his/her duties particularly conferred by the statutory provisions.
As a postscript, the situation above can best be addressed through legislative intervention, with the amendment of section 39(1) to read “if by reason of an error the same land been registered in the names of different persons or the same land has been registered more than once in the name of the same person …”.
Assistant Law Lecturer,
Your thoughts on this matter will be appreciated - Editor