CHANGE IN CONVEYANCING PRACTICE EMANATING FROM AMENDED REGULATIONS TO THE DEEDS REGISTRIES ACT 47 OF 1937 AND SECTIONAL TITLES ACT 95 OF 1986
In terms of Government Notice R 291 and R 292, published in Regulation Gazette No. 9268, dated 16 April 2010, the regulations to the Sectional Titles Act was published, which becomes operational with immediate effect, as well as the amendments to the regulations to the Deeds Registries Act, the latter only becoming operational one month from publication, that being 16 May 2010.
Each of the amendments will now be discussed, with specific reference to how it affects the day to day functioning of practitioners and deeds office staff.
A. SECTIONAL TITLES ACT REGULATIONS
The insertion of this new subregulation merely makes it peremptory for a Registrar of Deeds to endorse all documents, which are to be filed in a sectional title file, with a deeds registry date endorsement. The reason for the inclusion of this subregulation is to prevent the substitution of documents, rules, etc., subsequent to the opening of a scheme. It has come to the attention of Registrars that the section 25(2) plans and documents are substituted after registration of the real right of extension. In the same vein the scheme rules were also substituted. In future all the correspondence and documentation lodged subsequent to 16 April 2010 will not be deemed to be the lodged document if it does not contain the deeds registry date endorsement.
The prescribed form for a sectional title mortgage bond has been substituted with a new form which makes provision for compliance of regulation 41(1) of the Deeds Registries Act, 47 of 1937. Should the immovable property being mortgaged be subject to conditions, as well as restrictive conditions, the bond must refer thereto, and more specifically to the restrictive condition.
This new form will only be required for bonds executed before the conveyancer after 16 April 2010.
These two new forms are incorporated into Annexure 1 as there is no form for a collateral or surety sectional mortgage bond. Previously Form Z had to be used and the contents of Form KK and LL to the regulations of the Deeds Registries Act used to assist with the drafting. This inclusion of these two forms now eradicates all uncertainty as to the drafting of collateral and surety sectional mortgage bonds.
The amendment of rule 39 does not affect the practice from a deeds registry perspective.
B. DEEDS REGISTRIES ACT REGULATIONS
- Regulation 16
The substituted regulation now provides that a registrar of deeds must keep a register not only of conveyancers, but also of other persons who have the authority to sign the preparation clause on deeds and documents lodged at a deeds registry for filing or registration, for example, Landbank officials, Transnet officials, etc.
- Regulation 18
This regulation now provides that should the date of birth be incorrectly reflected in the identity number of a natural person, such person shall be identified in deeds and documents by way of the identity number and date of birth.
- Regulation 29
The substituted regulation now provides that in any deed or document where land is described, the extent must be expressed in words and figures. Previously this regulation did not apply to certificates of real rights, etc.
- Regulation 34
The regulation now refers to Act 66 of 1965 instead of the previous Administration of Estates Act. This consequential change does not affect the practice as such.
- Regulation 35
This is a consequential amendment, which merely brings the regulation in line with the Constitution, in that there are eleven official languages, not merely two.
- Regulation 39
This amendment is also consequential as deeds registries no longer register prospecting contracts.
- Regulation 47
The amendment to this regulation merely has the effect that a part payment need only be registered when a mortgage bond is ceded for the balance due. It is thus no longer peremptory to do a part payment or cover reduced when registering a substitution of debtor, in terms of section 45 or 57 of the Act.
- Regulation 48
This regulation has been deleted as collateral and surety bond are always drawn substantially in the prescribed form of KK or LL.
- Regulation 49
The amendment of this regulation now clearly provides that the liquidation and distribution agreement need only be lodged if required. Prior to the amendment, the regulation created the impression that the liquidation and distribution account must always be lodged in the case of transfers emanating from intestate succession.
- Regulation 50
The amendment to this regulation now clarifies the fact that a liquidation and distribution account does not have to be accepted by the Master.
The deletion of the reference to mineral rights is merely to update the regulation.
- Regulation 52
The amendment to this regulation is merely to remove the reference to the partition of mineral rights, as this is no longer capable of being registered in a deeds registry.
- Regulation 61(2)
The amendment of this regulation now allows for the unilateral cession of any personal servitude, provided no burden is placed on the cessionary. Prior to the amendment, the only unilateral cession permitted was the cession of a usufruct, usus or habitation to the bare dominium owner, as provided for in section 66.
- Regulation 65(10)
This amendment merely is a consequential amendment to remove reference to the Registrar of Mining Titles.
- Regulation 68(11A)
This new inclusion now provides for the cancellation of a mortgage bond and notarial bond in the case where the office copy and client's copy are lost.
Interesting to note that no advertisements are required, contrary to the instruction in CRC 1 of 2010.
- Regulation 72
The deletion of this regulation was consequential to the nonregistration of mineral rights.
- Regulation 73(1)
The deletion and amendment of these subregulations were also consequential to the nonregistration of mineral rights.
- Regulation 73(2A)
This new subregulation now makes it clear that a sketch or plan in lieu of a diagram is unacceptable.
- Regulation 74
The amendment effected to this regulation was merely consequential as deeds registries no longer register leases under the Land Settlement Act of 1956.
- Regulation 75
The deletion was consequential as deeds registries no longer register the cancellation of a mynpacht brief.
- Substitution and Deletion of Prescribed Forms
The prescribed forms relevant to mineral rights have been deleted and numerous other forms updated to bring them in line with the amended regulations or new legislation.
Sectional Titles Act of 1986: Amendment of Regulations and Deeds Registries Act of 1937: Amendment of Regulations