Having being involved in conveyancing for many years, I have seen the following note time and time again and I have always been amazed at the simple reason that the note is raised.
When attorneys attend to Divorce settlements and there is property involved, it appears that in many instances the property(ies) are referred to by street address only.
During a subsequent transfer of the property(ies), the deeds office often raises notes on prep as above, asking the Conveyancer to identify the property in the divorce order. This may be obvious where there is more than one property, as all involved properties are not necessarily dealt with in the same manner. However, even if there is only one property, the same note is often raised where just a street address is disclosed in the Divorce order. (see below – details blanked out for obvious reasons).
It would be fantastic if the registered property description, together with the Street address is used when describing Property forming the part of such divorce settlement.
Going forward, conveyancers could further pre-empt the above note and delight the Deeds Office examiners by including a conveyancers certificate on lodgement, stating that the within property and the property referred to in clause xyz or referred to as “whichever street address (specify)” are one and the same property.
This is a perennial problem and one of the reasons I always say that agreements of sale, divorce settlements agreements, wills and generally all other documents and agreements involving immovable property should always disclose the cadastral description of the property.
Surely professionals who draft these documents verify ownership of the properties involved before they draft the documents by means of deeds registry searches? Surely it is reckless not to do this? And if the search has been done, as it should have been, then why not use the cadastral description to avoid all possible disputes? An address can, of course, always be used - but in conjunction with the cadastral description.
Why do practitioners make things difficult for themselves and their clients?
Could someone advise what the position is where the Divorce Order has a typo with the incorrect ERF number stated. Would one have to get a amendment of the Divorce Order or will a certificate suffice?
And Identity Numbers of both the Plaintiff and Defendant on the Divorce Settlement Paper as well.
The settlement agreement may be amended inter partes without the approval of the Court , provided the rights of third parties are not affected by the said amendment -- see ex parte Boshi and ex parte Naude
May an Executor and surviving ex-spouse amend the terms of a divorce settlement agreement, if the rights of third parties are not affected?
An Executor does not have the power to enter into or amend agreements in the estate of the deceased.