Registrar's resolutions

The 2006 Conference marked the beginning of an era in which the jurisdiction of deeds registries will ultimately coincide with provincial boundaries. Thus the Registrar of Deeds: Mpumalanga was, for the first time, part of the Conference. In this article, as is the custom, only some of the resolutions of the 2006 Registrars' Conference will be discussed. A resolution will be quoted in full and then followed by a discussion.

7/2006 (RCR 19/2005 and RCR 7/1994) - Section 57 of Act No. 47 of 1937
It is submitted that the provisions of Section 57 can only be invoked where "the whole of the land mortgaged is being substituted".

Resolution:
RCR 19/2005 and RCR 7/1994 are hereby confirmed.

In the previous edition, Mr Thabo Nqhome expressed certain views that support this resolution. In view of this, no comments with regard to this resolution will be made at this stage. The intention is to give the reader the opportunity of reading and perhaps digesting Mr Nqhome's views before formulating a response. In short, this resolution will be discussed in the next edition, simultaneously with the response to Mr Nqhome's views.

23/2006 Further Lease Agreements
May a further lease agreement be registered whereby it is agreed that the said lease will only become operative once the initially registered lease has lapsed by effluxion of time or for any other reason?

Resolution:
Yes. No objection exists to the postponement of the date of coming into operation of a lease agreement. A lease may run from one fixed date to another, or from a fixed date for a definite period (see Bowhay v Ward 1903 TS 772 and Dick v Hiddingh (1830) Menzies 499).

This resolution permits the registration of two or more lease agreements. This will lead to a situation in which a property would be made subject to, for example, three lease agreements that take over from each other. However, a thorough perusal of the Deeds Registries Act revealed no provision supporting this kind of registration. The reasons given to justify the resolution, unfortunately, do not address the registration procedure introduced by the resolution. The mere fact that no objection exists to the postponement of the date of coming into operation of a lease agreement is not a justification for the registration of more than one lease agreement at a time. The fact that a lease may run from one fixed date to another or from a fixed date for a definite period is also true, but is also no justification of the registration procedure introduced by the resolution.

28/2006 Proof of intestacy
Given the fact that a death notice cannot be accepted as proof of children born out of wedlock, the same should also not be accepted as proof that a person died leaving no valid will. Does the Conference concur and if so, what proof should be required?

Resolution:
A death notice cannot serve as evidence of intestacy. Proof in the form of an affidavit from the executor must be insisted upon. This resolution contradicts RCR 7/1997. The relevant part of the said resolution is reproduced here for the reader's convenience.

R:7.1 Registrars' Conference Resolution No. 29/1996 is withdrawn.
7.2 As a Death Notice is a statutory document in terms of §7 of the Administration of Estates Act, 1965 (Act No. 66/1965), it may be accepted as proof of: -
7.2.1 Death;
7.2.2 Intestacy; and
3.3.3 Immediate ascendants and descendants

NB: For proof of any further heirs (including illegitimate children), an affidavit of next-of-kin must be called for.

The possibility that the person who notifies the Master about the death of another person might not necessarily be privy to the existence or otherwise of a will renders a death notice an unsatisfactory document to serve as proof of intestacy. It is this state of affairs that inspired the Conference to resolve that only an affidavit by the executor should be accepted as proof of intestacy. It is, however, an oversight that the 2006 resolution does not expressly revoke the 1997 resolution. This matter would be referred to the Conference for rectification. It stands to reason, therefore, that the 1997 resolution should not be implemented.

30/2006 New marriage, new contract
Where parties have entered into an antenuptial contract and subsequently divorce and remarry each other, does the contract revive or must a new contract be entered into?

Resolution:
A new contract must be entered into.

It is doubtful that the issue raised in the resolution falls within the ambit of the Conference. Firstly, does a registrar of deeds have the authority to compel parties to register an antenuptial contract? It is beyond any shadow of doubt that the registrar of deeds has no such power. Secondly, there is a possibility that a subsequent antenuptial contract is, indeed, registered in another deeds registry. It must be noted that an ANC is registrable in any of the deeds registries.

32/2006 Cancellation of usufruct, usufructuary over 100 years old, no death certificate
Is it really necessary to obtain a court order where no death certificate or death notice is available to prove the death of a usufructuary who is over a hundred years old? A sworn affidavit by her surviving children regarding her death is available.

Resolution:
No.

The manner in which the resolution is framed renders it open to misinterpretation. One may legitimately read it as saying, "No, it is not really necessary to obtain a court order." What the Conference really resolved, however, is that a sworn affidavit is not acceptable, but that an application for a court order must be lodged.

34/2006 Antenuptial contracts - unrehabilitation
The following clause has been inserted into an antenuptial contract:
The accrual system is to apply without modification to their intended marriage, provided that, should either party be an unrehabilitated insolvent at the time of the dissolution of the intended marriage, then the said accrual system shall not apply. Is the proviso legal and enforceable?

Resolution:
Such a proviso is not legal and is to the disadvantage of future creditors. The Matrimonial Property Act only allows certain assets to be excluded from the accrual system. See Vorster v Steyn 1981 (2) SA 831 (O).

No comment is to be made with regard to the content of the resolution. Comment will be made only in relation to its effect with regard to the examination process. Examiners are, therefore, implored to read the entire contents of an ANC in the examination process. Once found, it stands to reason that rejection is inevitable.

57/2006 Section 27A rights
A sectional plan, reflecting exclusive use areas, is to be registered. No certificate of real right of exclusive use areas is included in the batch. The application for the registration of the sectional plan and opening of the sectional title register makes no mention of the exclusive use areas. However, section 27A rights are created and assigned in the rules. In compliance with section 27A(b), with regard to the layout plan, reference is made to the sectional plan. Is this plan registerable?

Resolution:
No, if the exclusive use areas are depicted on a sectional plan, such exclusive use areas cannot be created and assigned in the rules.

This resolution puts an end to an unsound practice of dealing with exclusive use areas that are depicted in a sectional plan in terms of Section 27A of the Sectional Titles Act. Once exclusive use areas have been depicted on the sectional plan, the developer has chosen to deal with the same in terms of Section 27, a choice that can be abandoned only by having the sectional plan duly amended. It is clear from Subsections (1)(b) and (4)(a) of Section 27 that depiction of exclusive use areas in a sectional plan renders the registration of the same
compulsory and therefore leaves no room for the application of Section 27A. Lastly, it must be noted that a sectional plan can only be registered in toto and never partially.

58/2006 Section 27(5)
The mortgagee of a bond registered against the relevant section must consent to the cancellation of the exclusive use area. What if the exclusive use area is mortgaged? The act provides no guidance in this matter.

Resolution:
The mortgagee of the bond over the exclusive use must consent to the release of the exclusive use area from the operation of the bond, before such exclusive area can be cancelled.

This resolution clearly identifies the instance in which a mortgagee's consent is necessary and the nature of the relevant consent. It is evident from the resolution that consent is necessary only where the relevant exclusive use area itself is also hypothecated, by the bond that hypothecates a unit, and that the relevant mortgagee must consent to the release thereof from the operation of the bond and not necessarily the cancellation thereof. It stands to reason that the procedure would be different in relation to a bond that hypothecates the relevant exclusive use area only. In this instance, the relevant bond must be cancelled.

59/2006 Right of extension about to lapse
Where a right of extension is about to lapse due to effluxion of time, may all interested parties, in terms of Section 3(1)(r) of Act 47 of 1937, enter into a notarial modification of the initial right, to extend the period?

Resolution:
The duration of the right of extension can only be extended by a court order.

At first glance, this resolution may seem not to be in the interests of the sectional title scheme community, but the converse, however, is true. It must be noted that, although an extension of a scheme might benefit the registered owners of units in the sense that it would increase the revenue base, an extension under these circumstances would primarily be of benefit to the developer. There is also the possibility that the diminution of the share in the common property that would result from extension would far outweigh the benefit of the increase in the revenue base. Lastly, it must be pointed out that a resolution to the contrary would fall foul of Section 25 of the Sectional Titles Act.

Republished with permission from SA Deeds Journal