Conference Resolutions 08(3)

42/2008 Revocation of General Power of Attorney by virtue of a revocation clause contained in the new General Power of Attorney lodged for registration:
Numerous general powers of attorney lodged for registration contain a clause revoking an existing power of attorney. Does Conference agree that a separate notice of revocation must be lodged to cancel the existing general power of attorney?

Resolution:
No. Conference does not agree. The registration of a general power of attorney and the revocation of an existing general power of attorney may be contained in the same document. In this instance the document will receive a PA code which code will also be used for purposes of the cancellation of the existing general power of attorney. However, the revocation of an existing general power of attorney may be contained in a separate document, constituting a separate act of registration.

Examiners are implored to take notice of this resolution. It must be noted that irrespective of the procedure applied, examiners must still obtain the office copy of the PA to be cancelled and effect the necessary endorsement thereon. In this regard see paragraph 22 of chapter 3 of the Notarial Practice Manual at page 351 of the Deeds Practice Manuals.

46/2008 Section 18(3) of Administration of Estates Act No. 66 of 1965:
It often occurs that a representative sells immovable property from the estate he is administering for a purchase price in excess of R125 000,00. Does the onus rest on the registrar of deeds to request authorisation from the Master to sanction such a sale?

Resolution:
Yes. As per instruction from the Master's Office, the deeds registry should not allow transfer of immovable property in section 18(3) estates without the written approval of the Master.

(RCR 2/2003 and RCR 3/2003 are hereby withdrawn).

The Master ought to be thanked profusely for assuming responsibility for section 18(3) transactions. All that an examiner must do is to ensure that the relevant approval from the master is endorsed on the relevant Power of Attorney or application. The Master has indicated that only sales will require an endorsement irrespective of the purchase price.

50/2008 Abolition of Certain Title Conditions Act No. 43 of 1999:
Does section 1(1) of Act No. 43 of 1999 also apply to conditions imposed in terms of section 11(6) of the Advertising on Roads and Ribbon Development Act No. 21 of 1940?

Resolution:
No, in view of the exclusion from the application of the Act contained in section 2 of the Abolition of Certain Title Conditions Act No. 43 of 1999, the Act cannot be applied for the removal of the conditions imposed in terms of section 11(6) of the Advertising on Roads and Ribbon Development Act No. 21 of 1940.

This matter came to conference because of a practice of removing Act 21/1940 conditions in terms of Act 43 of 1999 that has mushroomed in the deeds registries. Those who have accepted this practice would now wonder as to the correct procedure. The answer to their dilemma can be found in section 11(8) of Act 21/1940.

59/2008 Section 15B(3)(a)(ii) of Act No. 95 of 1986:
Must section 15B(3)(a)(ii) of Act No. 95 of 1986 be adhered to where the causa for the transfer of a sectional title unit is not a sale?

Resolution:
No the provisions of section 15B(3)(a)(ii) need not be complied with.

Examiners are implored to take notice of this resolution and apply it accordingly so as to avoid any unnecessary inconvenience to practitioners and their clients. It stands to reason that if only a purchaser would be interested in the registration or otherwise of a right of extension.

60/200 Section 25 of Act No. 95 of 1986: subdivision of real right of extension:
A real right of extension is subdivided into numerous portions. How and when must the provisions of section 68(1) of Act No. 47 of 1937 be applied, for purposes of the endorsement of the lapsing of the right on the section 11(3)(b)schedule of conditions?

Resolution:
The 11(3)(b) schedule must only be endorsed, in terms of section 68(1) of Act No. 47 of 1937, when the whole of the right has lapsed.

Examiners are implored to take notice of this resolution. I must state, also, that I have noticed a practice in which a plethora of section 68(1) applications are lodged in cases where a section 25 right has been subdivided and the relevant sectional plans are to be registered. There is no authority for this procedure and practitioners are implored to desist from attempting to effect such registrations. To those examiners who permit such registrations, my question is: What is your authority?

61/2008 Section 25(2) of Act No. 95 of 1986 plans:
Section 25(2) of Act No. 95 of 1986 sets out the requirements for the plans of extension where a right to extend is reserved. To ensure compliance with the technical requirements of such plans, can a registrar of deeds make it a requirement that a land surveyor or architect certify that the plans that have been drawn are in accordance with section 25(2)? Given the technical nature of the plans the expertise lies with the architect or land surveyor and it would place an unfair burden on the registrar of deeds to examine such plans.

Resolution:
Yes, section 4(1)(a) of Act No. 47 of 1937 authorises the registrar of deeds to call for such certificate from the surveyor or architect, with regard to compliance to section 25(2)(a) and section 25(2)(b) of Act No. 95 of 1986.

This resolution will not only protect the registrar of deeds from unnecessary challenges, but will also ensure that the section 25(2) plans are lodged where there is a reservation in terms of section 25(1).

Examiners are implored to ensure full compliance with section 25(2) so as to avoid the embarrassment of schemes registered without the said plans, as this occasionally happens.

65/2008 Implementation of Local Government: Municipal Property Rates Act No. 6 of 2004:
Act No. 6 of 2004 will become fully operative on 1 July 2009. Does this result in the Act also being applied in respect of a "right registered against immovable property" (see section 3). If so, will this also include exclusive use areas, rights of extension, etc?

Resolution:
Yes, the Act is clear. If the right registered against immovable property is not rated, a clearance certificate from the local authority must be issued accordingly.

The effect of this resolution is that, in respect of deeds lodged on or after 1 July 2009 relating to rights registered against immovable property, a rates clearance certificate must be lodged. Where such right has not been rated, then the relevant local authority must still issue a certificate confirming that fact. Practitioners should thus take note that a conveyancer's certificate will not be accepted.

Once again, the views expressed in this article are personal and should by no means be attributed to the office of the Chief Registrar of Deeds.

George Tsotetsi
Office of the
Chief Registrar of Deeds

Republished with permission from SA Deeds Journal