The Registrars held their annual conference during November 2007 and 52 resolutions were taken. These resolutions have become operative from 2 January 2008 and are applicable to all Deeds Registries.
What follows is merely those conference resolutions deemed necessary to draw examiners and practitioners attention to and which has an effect on the day to day practice of conveyancing.
RCR 3/2007 - Proof of Intestacy
Given the fact that a death notice cannot be accepted as proof of children born out of wedlock, it should also not be accepted as proof that a person died leaving no valid will. Does 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/representative, must be insisted upon. However, in the case of a transfer by endorsement in terms of section 45 of Act No. 47 of 1937, a regulation 49(1)(g) certificate from the Master will be acceptable.
RCR 4/2007- Sectional Title Mortgage Bonds
Where a sectional title unit is subject to conditions, imposed in favour of the Home Owners Association, restricting transfer, etc. must the bond registered over such unit be made specially subject to such conditions, in the light of RCR 5 of 1987, read with RCR22 of 2005?
Resolution
Yes, sectional bonds must be made subject to restrictive home-owners association conditions. RCR 13/2002 is hereby confirmed.
RCR 6/2007 - Registration of Usufruct over right to extend
Can a usufruct be registered over a right to extend as provided for in terms of section 25(9) of Act No. 95 of 1986? According to RCR 41/2003 and RCR 37/1 996, and Act No. 95 of 1986 it is possible to register a usufruct over an exclusive use area (this amplifies the registration of a "right over a right" which the law does not allow). Also, see RCR44/2003
Resolution
No, Act No. 95 of 1986 does not provide for a usufruct to be registered over a right of extension.
RCR 7/2007 - Regulation 68(11)
An authorized person/agent cannot make an oath on behalf of his/her principal (see RCR 6.12/1999). What is the position with an affidavit in terms of regulation 68(11) Act No. 47 of 1937, where the agent (conveyancer) acts in terms of a general power of attorney on behalf of the Mortgagee (The Bank)?
Resolution
RCR 6.12/1999 must also be applied to applications and affidavits in terms of regulation 68(11) of Act No. 47 of 1937. A general power of attorney mandating an agent to make an affidavit on behalf of his/her principal is contra bonis mores and should not be allowed.
RCR 12/2007- Conditions in Antenuptial Agreements
RCR 34/2006 states: the following clause is inserted in 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 to the disadvantage of future creditors. The Matrimonial Property Act only allows that certain assets can be excluded from the accrual system. See Vorster v Steyn 1981 (2)SA831 (0).
In view of the comments made by the judge in ex parte Wismer 1950 (2) 195 CPD the above resolution should be revisited.
Resolution
Registrars of Deeds must register the contract. Should any dispute arise as to the contents thereof, the parties concerned may refer the matter to court for clarification. See ex parte Wismer 1950 2 195 CPD on pages 198 and 199. (RCR 34/2006 is hereby withdrawn).
RCR 15/2007- Application of Section 68(1)
Where a personal servitude has lapsed and the land encumbered thereby is transferred, is it peremptory to request an application in terms of section 68(1), or will the documentary proof lodged as a supporting document suffice?
Resolution
Section 68(1) must be complied with in all instances where a personal servitude lapses for any reason.
RCR 20/2007 - VA copy already lodged
Where application and affidavit is made for the issue of a certified copy of a title deed, bond, etc. for which a VA copy has already been issued, must the application be made in terms of regulation 68(7), or will an application in terms of regulation 68(1) be acceptable?
Resolution
The application must be made in terms of regulation 68(1) and not 68(7). RCR26.1/1996 is hereby confirmed in respect of the disclosure of the full facts.
RCR 34/2007 - Cross border insolvency
A Foreign Court has issued a judgment to liquidate a company that owns property in South Africa. A foreign trustee now requests the registrar of deeds to note a liquidation order against the company. Does the registrar of deeds have the power to note such an order to enable a foreign trustee to deal with company's assets?
Resolution
The registrar of deeds must decline to note such an order, unless it has been recognized by a South African Court. See Deutsche Bank AG v Moser and Another 1999 (4) SA 216 (C).
RCR 42/2007 - Lapsing of Right of Extension
Is it the duty of the registrar of deeds to check the right of extension on transfer of a unit to determine if same has lapsed, and if so, how must the 1 5B(3)-certificate be couched or must section 68(1) be complied with, where same has lapsed?
Resolution
No, it is not the duty of the registrar of deeds to check the right of extension on transfer of a unit. It is the duty of the conveyancer to determine whether or not the right of extension has lapsed. If it has been determined that such right has lapsed, then a section 68(1) application by the body corporate must be lodged. The 1 5B(3) certificate must reflect that a right of extension has been registered, but that such right has lapsed.
RCR 43/2007 - Non-disclosure of Period of Extension
What procedure must be followed where it is ascertained subsequent to registration that the reservation of a right of extension does not disclose a period of time in which the right must be exercised?
Resolution
A Notarial variation agreement entered into between the body corporate and the developer, with the written consent of all members of the body corporate as well as with the written consent of the mortgagee of each unit in the scheme, failing the agreement or the obtaining of all consents, an order of court must be obtained.
Should a body corporate not be in existence, a section 4(1)(b) application may be lodged where a right has been reserved, from time to time, but no specific period has been stipulated in the condition.
RCR 48/2007 - Subdivision of Agricultural Land Act 70 of 1970
Where a sectional title register is opened on land encompassing the word "farm" in the property description must CRC 6 of 2002 be applied in that the consent of the Minister must be obtained, alternatively proof that such land is not deemed to be agricultural land?
Resolution
Yes, CRC 6 of 2002 is applicable.
RCR 49/2007 - Opening of Sectional Title register and Act 21 of 1940
Where a sectional title register is opened on land within 95 metres from a main or building restriction road, must the provisions of section 11(4) of Act No. 21 of 1940 be applied as per the uniform practice applicable to conventional transfers of land to two or more persons?
Resolution
Yes, section 11(4) of Act No.21 of 1940 must be adhered to.
RCR 52/2007 - Couching of Waiver of Preference in Sectional Mortgage Bond
Uncertainty at present prevails as to how the waiver of preference of a real right, such as a usufruct, must be couched in a sectional bond.
Resolution
The usufructuary must either personally or in terms of an agent appear before the conveyancer. The bond must be made subject to the usufruct and the waiver must be contained in the bond and not the annexure.
Readers are advised to obtain a full set of the resolutions from their law society or from the Deeds Registry.
Republished with permission from SA Deeds Journal
Resolutions 2007
Leave a comment: