Registrars Conference Resolutions

Transcription

1 Registrars Conference Resolutions 1 supplement to the The Registrar s Conference Resolutions have been sorted and follows the sequence of the chapters and paragraphs in Parts 1, 2 and 3 of the course notes. Part 1 Conveyancing Practice and the Deeds Registries Act Chapter 1 - General Background Paragraph 3 The Deeds Registry Paragraph 4 The role of the conveyancer Paragraph 8 Basic concepts The basis on which diagrams framed in terms of section 16 of the Land Survey Act 8 of 1997 Currently, the office of the SG:KZN frames diagrams in terms of section 16 of the Land Survey Act 8 of 1997 for the purpose of noting subdivisions of registered properties on a general plan. Does the diagram framed in terms of section 16 of the Land Survey Act 8 of 1997 get registered? Resolution No. With the first registration of the property, it is registered from the general plan and it does not require a diagram. However, when the property is subdivided or a servitude is registered over such property, the diagram of the parent property (i.e. the diagram of the erf shown on the general plan) must be lodged with the subdivision/servitude diagram, where necessary for endorsement/deduction purposes (RCR49/2014). \ Chapter 2 - Transfer procedures Paragraph 4.3 Clearance figures Rates Clearance Certificates for Transfer of Same Property Paragraph 7.2 Consents needed Where a Home Owners Association is defunct or does not exist, and the court is approached to transfer land without the consent from the Home Owners Association, how must the other erven in the township be dealt with? Resolution Another court order must be obtained in respect of the other erven (RCR33/2013)

2 2 Paragraph 8 Lodgement, preparation and registration Paragraph 8.3 Circumstances where the title deed need not be lodged Regulation 51(2) Copies of receipts in terms of regulation 20(7) of the Deeds Registries Act Chapter 4 - Deed of transfer Chapter 3 Rules applicable to preparation of deeds and registrable documents Regulation 23: Font size of words in deeds Paragraph 4.3 Preamble DESCRIPTION OF PERSONS ACTING IN THEIR PERSONAL CAPACITY General rules applicable to the description of natural persons - abbreviation of identity number RCR 31 of 2006 and RCR 14 of : Use of Abbreviations in deeds and documents RCR 14 of 2008 does not allow for the use of certain abbreviations. However, the said practice is permitted in terms of the provisions of section 11 of the Companies Act No. 71 of Should RCR 14 of 2008 be withdrawn? Resolution No, RCR 14 of 2008 is confirmed (RCR13/2012). 3 RCR 21 of 2004: Divorce orders Transfer of property subject to condition of a deed of donation Immovable property was transferred to person X, unmarried, out of an estate, subject to the exclusion of community of property. Person X subsequently got married in community of property and later decides to donate the whole of the property to his spouse Y, excluding community of property. Will the deeds office allow this registration? Resolution Yes. The property must vest as follow: Y Identity number. Married in community of property to X, which community of property is excluded in terms of a condition contained in a deed of donation (RCR30/2014) : The following abbreviations are used in deeds and/or documents: Registration number / Reg number / Registration No / Nr, No/Nr/Registrasienommer/ Reg No. What is acceptable? Resolution: Abbreviations with regard to registration numbers of companies, close corporations, trusts, etc., are not permissible in deeds and documents tendered for registration. These abbreviations pertain to the suffixes added to the company name eg. (Pty) Ltd. It is only the words identity number and registration number that may not be abbreviated.

3 3 Item 8 - Persons married under the laws of any other country Transfer of property by donation or will Immovable property was transferred to a transferee, either by donation, or in terms of a will, excluding community of property. The transferee s marital status is cited as being married which marriage is governed by the laws of a foreign country. Should assistance by the other spouse be required if the transferee now wants to transfer the property or pass a mortgage bond? Resolution No. Assistance is not required in view of the fact that the condition excludes community of property. RCR 4/1958 is hereby withdrawn (RCR28/2014). Item 10 Persons married under the Recognition of Customary Marriages Act Description of parties to a polygamous marriage Given the case of Ngwenyama v Mayelane and Another 474/2011 [2012] ZASCA 94 dated 1 June 2012, how must a person be described who currently is a spouse in a monogamous customary marriage deemed to be one of in community of property, and who has entered into a polygamous customary marriage, without the required order of court as provided for in section 7(6) of Act 120 of 1998? Resolution The following is the appropriate manner to describe such a person: A Identity Number.. and B Identity Number.. married in community of property to one another and A married in terms of customary law (RCR28/2012) RCR28/2012: Description of parties to a polygamous marriage The resolution must be considered given the judgement handed down by the Constitutional Court in Ngwenyama v Mayelane and Another CCT57/12 [2013] ZACC 14. Resolution RCR28/2012 is hereby confirmed (RCR17/2013). Item 11 - Registration in name of partnership - parties married in community of property Vestings in partnerships A property is held by two persons each holding a 50% undivided share. These co-owners subsequently form a partnership and include the aforesaid property in the partnership agreement. Can the property now be vested in the name of the partnership by means of a section 3(1)(v) application? Resolution No. If registration into the name of the partnership is required, it must be transferred by means of a deed of transfer into the name of the partnership (RCR39/2013). Description of a Commandite Partnership Can a vesting disclose or refer to a commandite partner 4 in deeds and documents? Resolution No. The provisions of regulation 34 of the Deeds Registries Act, Act No. 47 of 1937 does not allow for such disclosure or reference (RCR22/2012). 4 In other words, a silent partner.

4 4 RCR22/2012: Description of a Commandite Partnership RCR 22/2012 should be revisited to allow for registration in the names of silent partnerships as well as En Commandite partnerships. Resolution The matter will be referred to the Deeds Registries Regulation Board, however, in the interim RCR22/2012 is confirmed (RCR15/2013) 5 Item 17 - Nature of marriage DESCRIPTION OF PERSONS ACTING IN A REPRESENTATIVE CAPACITY Item 1 - Companies and close corporations RCR 31 of 2006 and RCR 14 of 2008: Use of Abbreviations in deeds and documents RCR 14 of 2008 does not allow for the use of certain abbreviations. However, the said practice is permitted in terms of the provisions of section 11 of the Companies Act No. 71 of Should RCR 14 of 2008 be withdrawn? Resolution No, RCR 14 of 2008 is confirmed (RCR14/2012). 6 Item 2 Trusts Bewind trust How must a bewind trust be described in deeds and documents? Resolution It must be described in the same manner as any other mortis causa or inter vivos trust (see the definition of trust in the Trust Property Control Act, 1998 (Act 57 of 1998)) (RCR21/2012). Item 6 - Insolvent estates (natural persons) Paragraph 4.4 Paragraph 4.5 The causa clause The vesting clause Item 2 - Trusts Paragraph 4.8 The conditional clause Where a Home Owners Association is defunct or does not exist, and the court is approached to transfer land without the consent from the Home Owners Association, how must the other erven in the township be dealt with? Resolution Another court order must be obtained in respect of the other erven (RCR33/2013) Homeowners consents and certificate by architects or land surveyors as contemplated in RCR61/ The Deeds Registries Regulation Board has already decided that property may not be registered in the names of silent partnerships as well as En Commandite partnerships. Only the instances referred to in RCR31/2006, namely identity number and in RCR14/2008 may not be abbreviated.

5 Conference must consider providing guidelines for the form of the certificate from a land surveyor or architect required in terms of RCR61/2008 and section 24(6)(d) of Act 95 of 1986 and the form of consent from Home Owners Associations. Whether it must contain letterheads, practice numbers and attestation of the land surveyor s signature by witnesses. Resolution A homeowners association consent must be contained on its letterhead or be prepared by a conveyancer in terms of regulation 44 and certificates from architects and land surveyors must contain their names and practice numbers (RCR39/2014). RCR43 of 2003 and RCR2 of Home Owners Association Where a condition prohibiting the alienation or transfer of a property without the consent of the Home Owners Association is contained in the title deed of the property and the conveyancer lodges a certificate stating that the HOA has not been established, may the Registrar of Deeds accept this certificate, and must the condition be brought forward in the transfer deed? Resolution Consent must be insisted upon, failing which the matter must be referred to court for permission to transfer without the consent. The condition must be brought forward in the title deed, unless the court provides otherwise. RCR43/2003 and RCR2/2007 are hereby withdrawn (RCR5/2014) RCR42(a)/2011: Name change of Home Owners Association RCR42(a)/2011, 8 which provides that in the conditions of a title deed, the new and old name must be referred to must be reconsidered, given the provisions of CRC3/2012. Resolution Paragraph of CRC3/ must be adhered to in that the condition must be quoted verbatim, the consent required for an act of registration must refer to both the new and old names. RCR42(a)/2011 is withdrawn (RCR11/2013) Scenario: A condition prohibiting the alienation or transfer of a property without the consent of the home owners association is contained in the title deed of the property. On transfer of the property the conveyancer lodges a certificate stating the home owners association has not been established. 1 May the registrar of deeds accept this certificate; and 2 may the condition be brought forward in the deed of transfer? Resolution 1 No. The consent must be insisted upon, failing which the matter must be referred to court for permission to transfer without the consent. 2 The condition must be brought forward in the title deed -(RCR2/2007 and RCR43/2003). RCR42(a): In the event of a Home Owners Association changing its name sometime after the township was proclaimed in the Provincial Gazette, how must the change of name be dealt with? a) Must the Proclamation be followed verbatim? a) No. The new name must be followed. Proof of the change of name must be filed on the township file and the affected deeds must be endorsed in terms of section 3(1)(v) of Act No. 47 of 1937 regarding the new name. A caveat must be noted against all relevant erven in the township to the effect that the new name must be followed. CRC3/2012 was repealed by CRC28/2013. However the same provision has been repeated in paragraph of CRC28/2013.

6 Home Owners Association conditions Scenario A developer of a township is placed under liquidation and the whole development is transferred to a new owner. The new owner forms a Home Owners Association with new conditions. How must the conditions that are referring to the first Home Owners Association (which is not operational) be dealt with? Resolution The conditions creating the first Home Owners Association must be removed in terms of the relevant legislation or an order of court (RCR39/2012). Change of information contained in title deeds When a conveyancer prepares a deed of transfer, the information contained in the conditions of the deed may have changed as a result of, for example, changes to property descriptions, metrication of dimension and areas, or changes to personal or company details. While it is agreed that property descriptions and areas in the property clause must be updated to current data, what other details must change, and what details must remain? Resolution Conditions must be brought forward verbatim as it appears in the title deed in terms of regulation 35 of Act 47 of 1937 (RCR46/2014). Condition of title defining use The conditions of establishment of a township contain a condition that a specific property shall be used for residential purposes only. This property is owned by the municipality and it to be transferred to an ecclesiastical institution to be used as a church. May a registrar of deeds raise a query on a deed lodged to ascertain whether the property in question has been rezoned for ecclesiastical purposes? Resolution No. The zoning of the property is of no concern to the registrar of deeds (RCR48/2014). 6 Paragraph 4.10 Consideration clause Value of property Must the value of a property be referred to in the causa clause (form H sectional title deed), or on the last page (form E conventional deed), or may these formats be deviated from? Resolution In sectional title transfers the value should be disclosed in the causa (see form H). In conventional deeds of transfer the value should be disclosed in the consideration clause (see form E) (RCR34/2012). Paragraph 5 Deeds to follow the sequence of their relative causes Paragraph 5.3 Exceptions provided by section 14 Chapter 5 - Power of attorney Paragraph 2.2 Paragraph 2.3 Preparation and signing of the preparation certificate Regulation 44A - Responsibility for correctness

7 7 Powers of a business rescue practitioner Can the business rescue practitioner mortgage company property without the resolution of the board of directors? Resolution Yes, see section 140 of the Companies Act, 2008 (Act No. 71 of 2008) (RCR37/2012). Regulation 44 Conveyancer to initial pages of draft bond together with all mortgagors and witnesses May a registrar of deeds insist on full initialling of all pages of the draft bond by the conveyancer, who signed the preparation clause of the power of attorney to the draft bond? Conveyancers argue that Regulation 44 of the Act and RCR 26 of 2004 do not provide for the conveyancer, who signs the preparation clause of the power of attorney attached to the draft bond, to also initial the pages of the draft bond. Resolution The draft bond need not be initialled by the conveyancer (RCR19/2014). Regulation 44A (d)(ii)(aa) and (bb) General Power of Attorney The amendments to regulation 44A do not cover natural persons. According to CRC 4 of 2013 the amendments to regulation 44A(d)(ii)(aa) and (bb) of Act 47 of 1937, resulted in the responsibility of ensuring that a representative acting under the authority of a power of attorney, has been removed from the Registrar of Deeds (examiners) and has become that of the preparing conveyancer. However, it has to be pointed out that regulation 44A(d)(ii)(aa) and (bb) makes no reference to a representative acting on behalf of a natural person. It stands to reason that the amendments to the regulations did not remove all responsibilities from the Registrar of Deeds (examiners) and that where a person is appointed by a natural person as a representative, in terms of a power of attorney it is still the Registrar of Deeds (examiners) responsibility to check the power of attorney Resolution Uncertainty exists whether powers of attorney must be checked or not. Regulation 44A of Act 47 of 1937 and Regulation 16C of Act 95 of 1986 must be referred back to the relevant boards for further discussion. CRC 4 of 2013 is to be amended (RCR20/2014). Regulation 44A(d)(ii)(aa) and (bb) General Power of Attorney In view of the amendments to regulation 44A(d)(ii)(aa) and (bb) of Act 47 of 1937, is it still required for a Special Power of Attorney or General Power of Attorney which is to be utilized as a special power of attorney to be lodged? The responsibility of ensuring that a person acting in a representative capacity is duly authorised, has been passed to the preparing conveyancer. Resolution Special and General Powers of Attorney must be lodged as provided for in regulation 65(1) (RCR21/2014). Paragraph 2.5 Paragraph 2.6 Paragraph 2.7 Initialling of powers of attorney, applications and consents Authentication Analysis of a power of attorney Person authorizing the power of attorney The agent (Appearer)

8 8 Paragraph 5 General Power of Attorney Power of attorney A power of attorney is lodged for registration in a deeds registry in terms of section 3(1)(u) of Act 47 of However, same contains the new appointment as well as the revocation of a previously registered power of attorney. Must the registrar accept such a document for registration purposes? Resolution RCR42/2008 is hereby confirmed (RCR37/2013). Chapter 6 - Servitudes Paragraph 3.3 Types of personal servitudes Diagrams for habitatio: regulation 73(2) Is it always necessary for the submission of a diagram for the registration of a habitatio, given the fact that a habitatio can only be in respect of a dwelling on the land? Resolution Yes, see the provisions of regulation 73(2) of Act No. 47 of Also see Kidson vs Jimspeed Enterprises, Case No unreported. (RCR 21 of 1961 is withdrawn) (RCR29/2012). Diagram of a right of habitatio The resolution calling for a diagram when registering a right of habitatio must be revisited. This resolution causes hardship, particularly to disadvantaged clients. The aforesaid resolution results in forfeiture of rights of habitatio particularly derived from wills in section 18(3) estates Resolution RCR 21 of 1951 and RCR 29 of 2012 are hereby confirmed. A diagram must be lodged (RCR31/2014). Paragraph 3.5 Creation of personal servitudes A The General Rule RCR12/2010: Unilateral cession of personal servitude Regulation 61(2) of Act 47 of 1937 has been amended, and a unilateral cession of a personal servitude is only permitted when ceded back to the land owner. RCR 12/2010 and RCR24/2005 must be confirmed. Resolution A unilateral cession of a personal servitude, as referred to in section 66 of Act 47 of 1937, will only be permitted where a personal servitude is receded to the land owner of the land encumbered thereby. (RCR24/2005 and RCR12/2010 are hereby confirmed) (RCR3/2013). B C Exceptions to the general rule Other exceptions to the general rule Section 2 of the Transfer Duty Act No. 40 of 1949 Must a transfer duty receipt or exemption from transfer duty be called for when a

9 9 negative personal servitude is created in the power of attorney, and duly accepted? Resolution Yes, it is a transaction as per the definition of transaction in the Transfer Duty Act No. 40 of 1949, unless it is exempt for any other reason (RCR43/2012). Paragraph 3.6 Paragraph 3.6 Registration of personal servitudes Mortgage bonds and personal servitudes Consent in terms of section 65(3) re Eskom and Rand Water Board Are servitudes to be registered in favour of Eskom and the Rand Water Board exempt from having to obtain the consent of bond holders and holders of real rights as referred to in section 65(3) of Act No. 47 of 1937? Resolution No, Eskom and the Rand Water Board are not exempt from the provisions of section 65(3) (RCR18/2012). Paragraph 3.8 Paragraph 3.9 Paragraph 3.10 Transfer and mortgage of land with personal servitude thereon Joint transactions by fiduciary and fideicommissary Transfer duty and personal servitudes RCR 34 of 2013 Cancellation of pre-emptive right and transfer duty Where a condition, not binding successors in title, is cancelled or renounced, is such cancellation or renunciation deemed a transaction within the ambit of section 2 of the Transfer Duty Act 40 of 1949? Must a transfer duty receipt or exemption certificate be lodged, as provided for in RCR5 of 2005? Resolution No, it is not property as defined in the definition of property in the Transfer Duty Act 40 of No transfer duty receipt or exemption certificate is required. RCR34/2013 is hereby withdrawn (RCR14/2014). Paragraph 4.3 Paragraph 5 Creation of praedial servitudes General Reference of the servitude diagram to the SG for plotting should it be before or after registration of the servitude? Scenario A right of way was created in a Notarial Deed of Servitude but the right was not depicted on a new diagram. The notary attempted to comply with regulation 73(2) of Act No. 47 of 1937, and the deeds were lodged and registered. The diagram, attached to the diagram deed, was then referred to the Surveyor- General for plotting but the Surveyor-General informed the deeds registry that the servitude could not be plotted and that the deed was incorrectly registered. When a diagram is filed in the deeds registry and the Surveyor-General needs to plot a servitude, such diagram must be referred to the Surveyor-General before lodgement. Must approval be obtained from the Surveyor-General before lodgement? Resolution No. The Surveyor-Generals approval is only required in instances where the servitude is not of a constant width and does not extend the entire length of a

10 10 Unregistered servitudes surveyed line on a diagram. See regulation 73(2) of Act No. 47 of 1937 (RCR32/2012). When a subdivisional diagram is to be registered, can unregistered servitudes (delineated on another unregistered servitude diagram) be shown on the diagram being transferred remain unregistered, only to be registered in the future? Resolution No. Servitudes shown on a diagram must already be registered or be registered simultaneously with the deed, subject to regulation 60(1) of Act 47 of 1937 and regulation 21(4) of the Land Survey Act 8 of 1997 (RCR44/2015). Registration of Servitudes If more than one servitude is shown on one servitude diagram over the same piece of land, can the servitudes be registered piecemeal in favour of different parties? Resolution No. Servitudes shown on a single servitude diagram, which are not already registered, must be registered simultaneously, either in one deed or more than one deed in favour of the relevant parties (RCR45/2014). Numbering of duplicate servitude diagrams Mining company A (owner of the land) is giving a servitude over a property to Mining Company B for mining infrastructure purposes (pipes, access, power lines, etc.). Mining Company C wants to register a right of way servitude over the same area. Can more than one servitude deed be registered against a single diagram? Resolution No. In terms of regulation 73(2) of Act 47 of 1937 a new servitude diagram must be lodged for every other right (RCR62/2013). Registration of servitudes which have conflicting rights Can a road servitude be registered when there is an underlying planting servitude and how do the beneficiaries of both these servitudes enjoy their rights? Resolution Yes. The holder of the existing servitude must consent to the registration of the second servitude (section 65(3) of Act 47 of 1937) (RCR51/2014). Registration of servitude over leased land Where land is subject to a lease agreement which has been sub-leased, and the owner of the land anticipates registering a servitude over such land, may the lessee and sub-lessee join in, in registering the servitude, or can they merely consent to the registration thereof? Resolution On the analogy of section 65(3) 10 and 76(2) 11 of Act 47 of 1937, the lessee and sub-lessee must consent to the registration of the servitude. They must not be joined in the deed itself (RCR30/2013) Section 65(3): If the land to be encumbered by a personal servitude is mortgaged or subject to any other real right with which the said personal servitude may conflict, the bond or other registered deed by which such right is held shall be produced to the registrar together with a consent in writing of the legal holder of such bond or other right to the registration of the said person servitude Section 76(2): If the servitude is imposed on other land in favour of land to be transferred and that other land is mortgaged or is subject to any other registered real right with which the servitude may conflict, the consent in writing of the legal holder of the bond or other real right, to the registration of the servitude shall be produced, together with the bond or other deed evidencing such other right and the title deed of the servient tenement.

11 Cancellation and registration of servitude Is there any legal objection to the registration of one notarial deed encompassing the cancellation of an existing servitude and the simultaneous registration of a new servitude over the same property? Resolution No objection exists, provided that two transfer duty receipts/exemption certificates are lodged as this constitutes two separate transactions for purposes of the Transfer Duty Act 40 of 1949 (RCR32/2013). Chapter 7 - Estate transfers 11 Paragraph 2.2 Who transfers the property out of the deceased estate? Section 17(6) Assistance of executor by spouse in a foreign marriage Section 17(6) of the Act 47 of 1937 does not provide for assistance by a spouse if an executor acts on behalf of a deceased person who was previously married in terms of a marriage, which marriage was governed by the laws of another country. Taking into account the possibility that a joint estate might exist in terms of which the surviving spouse could have an interest, should the surviving spouse not join the executor when transferring the property? Resolution Yes, the spouse must join the executor in terms of section 21 of Act 47 of 1937, unless the conveyancer certifies that the property does not constitute an asset in a joint estate (RCR16/2014). Paragraph 3.1 Paragraph 3.2 Section 42(1) certificate Section 42(2) certificate Section 42(2) of Act No. 66 of 1965 Where immovable property is sold by the executor in the estate of the sole member of a close corporation, must the Master, in terms of section 42(2) of Act No. 66 of 1965, provide the necessary consent? Resolution No, the provisions of section 42(2) of Act No. 66 of 1965 are not applicable (RCR41/2012). Section 49 of the Administration of Estates Act In the event of a sale of land to a person as envisaged in terms of section 49(1) 12 of the Estates Act 66 of 1965, is the section 42(2) approval by the Master sufficient to allow the transfer of the immovable property? Resolution Yes, the section 42(2) consent by the Master is sufficient. However, when it is clear that the executor is also the purchaser, further confirmation is necessary 13 (RCR42/2013). Paragraph 5.1 Paragraph 5.4 The causa clause for an inheritance Supporting documents for estate transfers due to inheritance According to section 49 a sale to the executor, or his spouse, parent, child, partner, employer, employee or agent of property belonging to a deceased estate for which he has been appointed as executor, is void, unless the Master or the court has consented thereto or has ratified such sale. Further confirmation must be obtained by either the Master or the High Court to be lodged in the deeds registry.

12 Proof of spouses and descendants under Sections 1 and 2(2)(b) as well as section 3(1)(a) of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 Owing to the dual capacity of spouses and descendants referred to in section 1 and 2(2)(b) and (c) as well as section 3(1)(a) of the Reform of Customary Law of Succession and Regulations of Related Matters Act no. 11 of 2009, it is possible for some descendants to be regarded as spouses. Therefore it will be practically impossible for the Registrar of Deeds to apply the provisions of section 1(1)(a) and section 1(1)(b) of the Intestate Succession Act 81 of 1987 without some form of proof as to the said capacity. What kind of proof must be lodged to determine if a certain beneficiary is a spouse or a descendant in terms of the foregoing provisions? Resolution The next-of-kin affidavit must be suitably amplified and adjusted to clearly indicate the capacity of a beneficiary in line with sections 3(1)(a) and Section 2(2)(b) and (c) of Act 11 of 2009, alternatively an executor s/master s Representative affidavit must be lodged (RCR25/2014). 12 Paragraph 5.5 Paragraph 6.1 Divesting clause Section 45(1) endorsement Paragraphs 6.2 & 6.3 Sections 39(2) and 39(3) endorsements Application in terms of section 39(3) of the Administration of Estates Act No. 66 of 1965, where property is attached Is the registration of an application in terms of section 39(3) of Act No. 66 of 1965 allowed when the property is attached? Resolution Yes, as section 39(3) of Act No. 66 of 1965 is not an act of registration (RCR44/2012). Paragraph 6.4 Section 40 endorsement Paragraph 7.7 Restriction on minor s interests - section 80 RCR30/ Section 80 of the Administration of Estates Act Are the provisions of section 80 of the Administration of Estates Act applicable to redistribution agreements? Resolution No. The provisions of section 80 of the Administration of Estates Act do not apply to redistribution agreements (see Ex Parte Fuad Tofie case, unreported) (RCR8/2014). 14 : According to a discussion with the Chief Master, the provisions of section 80 of the Administration of Estates Act are not applicable to redistribution agreements (entered into by a minor where immovable property belonging to such minor forms the subject of the distribution). 14 Should RCR 48 of 2008 and 11 of 2009 no be withdrawn? Resolution: Section 80 of the Administration of Estates Act 66 of 1965 does not find application. RCR 48/2008 and 11/2009 are hereby withdrawn - (RCR30/2010).

13 RCR39/2007: Children s Act 38/2005 RCR39/2007 refers to section 38 of Act 24 of 1913 instead of section 38 of Act 66 of It is proposed that same be amended. Resolution RCR39/2007 is amended to read as follows: RCR39/2007 Children s Act 38/2005 With regards to CRC10/2007: The testator dies in May He was married out of community of property. They have to register a take-over by the surviving spouse in terms of section 38 of the Administration of Estates Act 66 of 1965 together with a Kinderbewys mortgage bond. The child became 18 in February The executor transferred the property in August 2007 with the power of attorney signed in July In terms of section 17 of the Children s Act 38 of 2005 the age of majority of a child is now upon reaching the age of 18 years. It means that with the signature of the power of attorney the child is already a major but vesting took place on the date of death of the testator. Must the section 38 transfer and kinderbewys mortgage bond still be proceeded with? Resolution A kinderbewys /mortgage bond need not be registered. Section 38 must be proceeded with. (RCR7/2013). 13 Paragraph 8 Miscellaneous Passing of bond by executor May a bond be passed by an executor/representative of a deceased estate? Resolution Yes, provided it is authorised in terms of the will. However, if not authorised in terms of the will, the executor will require an order of court before he/she can pass a mortgage bond, except where the mortgage is for the purpose of paying estate duty assessed against the estate. In the latter instance, it is sufficient if the Master consents. See Law and Practice of the Administration of Estates by Meyerowitz (RCR23/2012). Black-booking of holders of vested rights who have waived such rights In the instance where massing and adiation has occurred and the surviving spouse has waived his/her right to the limited interest subsequent to the acceptance thereof, must such holder of the vested right be checked for interdicts to determine locus standi? Resolution Yes. It is not a spes as such right has already vested, and should such person be insolvent, he/she will have no locus standi to waive such right (RCR36/2013) Waiver of limited interest Where massing and adiation have occurred, may the person who has adiated the terms of the will, simultaneously with the transfer of the immovable property to the heir, waive his/her limited interest in the massed property? Resolution Yes, see Rampathy v Krumm NO and Others 1978 (4) SA 935 (RCR24/2012). 15 Power of executors to transfer Where a company, consisting of only one director, has sold immovable property during the lifetime of such sole director and the land must now be transferred, 15 In the causa of such transfer, the full facts have to be mentioned, in other words whereas adiation has taken place, whereas the property is subject to a usufruct and whereas the usufruct has been waived

14 who has the capacity to affect such transfer? The Companies Act No. 71 of 2008 is not clear in this regard. Resolution The executor cannot pass transfer. A new director will have to be appointed to perform the act of registration (RCR25/2012) Date of transaction where massing and adiation take place In terms of the Transfer Duty Manual issued by SARS, there is a vast amount of confusion as to the date of transaction where massing and adiation take place, as well as with repudiation, in cases of testate and intestate succession. What would be the date of transaction? Resolution The date of the death of the testator will be the date of the transaction (RCR27/2012). RCR27/2012: Date of transaction where massing and adiation take place RCR27/2012 should be revisited. This resolution is in direct conflict with the transfer duty handbook which holds that the date of adiation must be the date of the transaction and not the date of death. Resolution RCR27/2012 is confirmed (RCR16/2013). Administration of Black estates Where a black person has died intestate prior to 1994, and the estate was administered in terms of the Administration of Estates Act, 1965 and devolves in terms of the Intestate Succession Act, must the matter be rejected for the estate to be wound up in terms of the Regulations issued under the Black Administration Act 38 of 1927 (R200 of 1987)? Resolution Yes. The estate must be administered in terms of Act 38 of 1927 RCR40/2013). Chapter 8 - Partition transfers Paragraph 3 The power of attorney to pass partition transfers Paragraph 8 Partition of land subject to fideicommissum Partition of land subject to Fideicommissum: Consent of the trustee in respect of the Insolvent Fideicommissary heir In terms of section 30 of Act No. 47 of 1937 the trustee must consent to the partition of land if a fideicommissary heir is insolvent. According to the definition of property in section 2 of the Insolvency Act No. 24 of 1936, property means movable or immovable property and excludes the contingent interest of the fideicommissary heir in the property. The fideicommissary heir is not recognized as the property owner. Must the consent of the trustee be required if the provisions of section 2 of Act No. 24 of 1936 are taken into consideration? Resolution Yes. The consent of the trustee on behalf of the insolvent fideicommissary heir must be obtained in terms of section 30 of Act No. 47 of 1937 (RCR31/2012). Chapter 9 - Certificates of registered title Paragraph 1 Section 34 CRT for a joint owner s undivided share Paragraph 4 Section 36 CRT of two or more properties held under one deed 14

15 Application of section 36 of Act 47 of 1937 Are the provisions of section 36 of Act 47 of 1937 peremptory when more than one piece of property is held under a title deed and the bond must be registered over the respective properties (i.e. different properties) in favour of different bondholders? Resolution No. However the provisions of section 36 must be referred to the Deeds Registries Regulation Board for consideration (RCR26/2013). 16 More than one section in a sectional title deed A title deed contains more than one section. Can section 36 of the Deeds Registries Act be used to obtain a certificate of registered title for one or more sections? Resolution Yes. The matter must be referred to the regulation board to provide for a prescribed form in this regard (RCR57/2013). Paragraph 5 Section 38 CRT to replace lost deed A lost copy of a notarial deed Where the client s copy of a section 25 right of extension, or exclusive use area created in terms of section 27, as well as the deeds office copy are lost, how must the holder of such right apply for his/her title to be replaced? Resolution Until the Act is amended, the provisions of section 38 of Act 47 of 1937 can be utilized, given the provisions of section 3(1) of Act 95 of 1986 (RCR42/2014). Paragraph 8 Certificate of consolidation - section 40 Paragraph 9 CRT for a portion of land - section Paragraph 9.3 Prerequisites for issuing of Section 43 certificates Conditions of sub-divisions endorsed on Power of Attorney / Application of sub-division Must the Registrar insist upon a regulation 38 certificate in terms of Ordinance 15 of 1986, as well as the consent to subdivision from the local authority, with the subdivision of an erf? Resolution Yes, the regulation 38 certificate, as well as the consent to subdivision in terms of section 92 of Ordinance 15 of 1986, must be lodged. The latter is necessary in order to establish whether there are registerable conditions that must be created or brought forward (RCR33/2012). Act 70 of 1970 An Act 70 of 1970 consent sets out how two farm properties, situated in the same registration division, should be subdivided, i.e. the one farm Farm 1, is subdivided into Portion A and a remainder and the other farm Farm 2, is subdivided into portion B and the remainder. The consent further states that portion A of Farm 1 should be consolidated with the remainder of Farm 2 and portion B of Farm 2 with the remainder of the first-mentioned, farm Farm The matter has already been considered by the regulation board. It was decided not to make the provisions of section 36 peremptory in such circumstances.

16 16 However, the two farms were consolidated prior to any subdivision but subsequently subdivided. The end result was the same as set out in the consent. Can the deeds registry accept this situation as compliant with the consent and register the transactions? Resolution It may be accepted as the same result is achieved as set out in the consent (RCR41/2013). Paragraph 11 Description of the vesting clause in a CRT Description of an owner of a Certificate of Registered Sectional Title A registered owner (natural person) dies before he could register the opening of a sectional title scheme over his property. How should the owner/holder be cited in the certificate of registered sectional titles, and certificates of real rights in respect of exclusive use areas and section 25 rights of extension? This may also be applicable to consolidations and subdivisions of sections. Resolution The owner/holder must be cited as provided for in regulation 54(2) of Act 47 of It must be registered in the name of the owner/holder, including identity number and status (deceased) (RCR37/2014). 17 Chapter 10 - Township establishment Paragraph 3 Township on a portion of a piece of land Paragraph 4 Township laid out on two or more pieces of land RCR 34 of 2009: One township on more than one property RCR34/2009 and RCR14/2011 Numerous requests have been received for the withdrawal of RCR34/2009 and RCR14/2011. Many townships, owned by different owners, have been opened and registered in the deeds registries in Pretoria and Johannesburg, where the relative general plans were approved by the Surveyor-General and the proposed townships approved by the local authority. In terms of section 46(1) of Act 47 of 1937 the registrar of deeds shall, subject to compliance with requirements of this section and of any other law, register the plan and open a register Resolution RCR34/2009 and RCR14/2011 are hereby confirmed, based on the motivation provided in RCR34/2009 (RCR2/2013). Paragraph 8 Transfer of a whole township or of a portion thereof Paragraph 9 Miscellaneous 17 For example: Joe Jackson Identity number Unmarried (now deceased)

17 Purchase date of a first transfer before the proclamation date of the township In terms of Ordinances land in a township cannot be sold, exchanged, leased or disposed of in any manner before the proclamation date. Can the owner, based on the Huntrex 148 (Pty) Ltd vs JA van Jaarsveld, case 217/2010, sell property before the township is proclaimed? Resolution The Ordinances must be adhered to. Alternatively a court order is required (RCR45/2012). Chapter 11 - Endorsements Paragraph 1 Section 3(1)(v) endorsement Conversion of a company and endorsement in terms of section 3(1)(v) Where a company, subsequent to 1 May 2011, has converted from a private company to a public company or vice versa, no procedure presently exists for the recordal of such conversion, as it cannot be registered in terms of section 93 of Act 47 of Conference must please provide guidance as to the procedure to be followed. Resolution The provisions of section 3(1)(v) of Act 47 of 1937 must be invoked to record the conversion. An application by a conveyancer / owner / holder must be lodged, duly supported by documentary evidence of the conversion (RCR25/2013). RCR 4 of 1956 Amendment of purchase price /value of property in a title deed Where the purchase price/value of property is incorrectly reflected in a deed, how must the error be rectified? Resolution The provisions of section 3(1)(v) may be applied upon application by the holder of the title deed subject to the lodgement of the satisfactory proof. Cognisance must be taken of transfer duty and fee implications. RCR4/1956 is hereby withdrawn (RCR3/2014). Paragraph 2 Section 4(1)(b) endorsement Section 4(1)(b) How must interested party in section 4(1)(b) of Act No. 47 of 1937 be interpreted, i.e. who must be regarded as an interested party and provide the necessary consent(s) for the amendment of the error in registration? Resolution It must be interpreted as any person whose rights may be affected in the rectification of the error (RCR15/2012). Erroneous removal of condition in terms of section 68(1) and rectification thereof If a condition was erroneously cancelled in terms of section 68(1) of Act No. 47 of 1937 instead of the applicable legislation (e.g. Removal of Restrictions Act), how should the error be dealt with or rectified? Resolution Section 4(1)(b) of Act No. 47 of 1937 must be applied to revive the condition and the applicable legislation (e.g. Removal of Restrictions Act) utilised for the removal thereof (RCR19/2012). Paragraph 4 Section 17(4) endorsement 17 Paragraphs 8, 9, 10 & 11 - Section 45 and 45bis endorsements Calculation of Fee in terms of Regulation 84

18 18 When more than one property is included in an application in terms of section 45, how must the office fee be calculated? Must it be calculated on each property separately or on the aggregate amount? Resolution The fee must be calculated on the sum total of all the property values (RCR20/2012). Paragraph 9 - Section 45bis(1)(a) endorsement Divorcees as joint developers A property is owned jointly by a husband and wife, married in community of property. They have opened a scheme and thereafter are divorced. They want to transfer one section to one of the spouses. How may they do so as the one spouse will hold a half share as a developer and another half share as an owner. Does the body corporate come into existence upon the transfer. Resolution A section 45bis(1A)(a) of Act 47 of 1937 must be applied prior to the transfer of the half share to the former spouse,. A body corporate comes into existence upon the registration of such transfer (RCR58/2013). Paragraph 11 - Section 45bis(1A)(b) endorsement Paragraph 12 Paragraph 13 Section 58 endorsement Section 68(1) endorsement RCR 34 of Cancellation of pre-emptive right and transfer duty Where a condition, not binding successors in title, is cancelled or renounced, is such cancellation or renunciation deemed a transaction within the ambit of section 2 of the Transfer Duty Act 40 of 1949? Must a transfer duty receipt or exemption certificate be lodged as provided in RCR 5 of 2005? Resolution No, it is not property as defined in the definition of property in the Transfer Duty Act 40 of No transfer duty receipt or exemption certificate is required. RCR34/2013 is hereby withdrawn (RCR14/2014) Underhand consents for waiver of a fideicommissum In terms of Van der Merwe v Registrar of Deeds NO 1975 (4) SA 636 (T), a registrar of deeds is permitted to accept underhand waivers from the fideicommissary heirs, where they waive their rights on transfer of the land by the fiduciary. Can these underhand waivers be accepted, without invoking the provisions of section 68(1) of Act 47 of 1937? Resolution The provisions of section 68(1) of Act 47 of 1937 must be complied with (RCR27/2013). 18 : Where a pre-emptive right, not binding successors in title, is cancelled, is this deemed a transaction within the ambit of section 2 of the Transfer Duty Act 40 of 1949? Must a transfer duty receipt or exemption certificate be lodged, as provided for in RCR5/2005? Resolution: No, it is not a property as defined in the definition of property in the Transfer Duty Act 40 of No transfer duty receipt or exemption certificate is required (RCR34/2013).

19 Section 68(1) Partial lapsing of a condition May an application be lodged in terms of section 68(1) of Act 47 of 1937 for the partial lapsing of a personal servitude? Resolution Yes, the provisions of section 68(1) of Act 47 of 1937 can be utilized in this circumstance (RCR17/2014). 19 Paragraph 14 Section 78(1) endorsement Transfer duty on cancellation of notarial lease agreement Is transfer duty payable on the cancellation of a long term lease agreement which is being cancelled before the expiry date of the lease? Resolution A lease does not fall within the definition of property in the Transfer Duty Act 40 of 1949 and therefore no transfer duty is payable (RCR35/2013). Paragraph 15 Section 93(1) endorsement Chapter 12 - Lost deeds Paragraph 2.1 Regulation 68(1) Paragraph 2.2 Application for copy where land is mortgaged (regulation 68(2)) Paragraph 2.4 Regulation 68(11) RCR7/2007: Regulation 68(11) Transnet is currently experiencing problems regarding the interpretation of RCR7/ In terms of the Legal Succession to the South African Transport Services Act 9 of 1989, as amended by Act 52 of 1991, (section 24(b)) employees of the Company are empowered to carry out any act in the deeds registry. With the implementation of the abovementioned resolution, Transnet s documents are being rejected on a regular basis. Resolution Section 33(2) of Act 9 of 1989 authorizes an employee of Transnet to act on its behalf. 20 (RCR6/2013). Paragraph 2.5 Application by the mortgagee of a lost or destroyed mortgage bond where the registration duplicate has also been lost or destroyed for cancellation thereof Reg 68(11B) & 68(11C) RCR6.12/1999 Regulation 68(11) An authorized person/agent cannot make an oath on behalf of his/her principal (see RCR6.12/1999). What is the position with an affidavit in terms of regulation 68(11) Act 47 of 1937, where the agent (conveyancer) acts in terms of a general power of attorney on behalf of the mortgagee (the bank)? Resolution RCR6.12/1999 must also be applied to applications and affidavits in terms of regulation 68(11) of Act 47 of 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 RCR7/2007. In other words such an employee may make an affidavit on behalf of Transnet. When such employee is described in a deed of document reference must NOT be made to his authority in terms of a general power of attorney, but to the fact that he is acting as representative of Transnet duly authorised thereto in terms of section 33(2) of Act 9 of 1989.

20 20 Application of regulation 68(11A) 21 Regulation 68(11B)(a) Unserviceable Deeds Registry and client s copy of mortgage or notarial bond May the provisions of regulation 68(11B)(a) of Act 47 of 1937 be utilized for the cancellation of a mortgage or notarial bond where the client s copy and deeds registry s copy are unserviceable? Resolution Yes. The matter will be referred to the board with the proposal to amend regulation 68(11B). Pending the amendment of the provisions, regulation 68(11B)(a) may be invoked (RCR22/2014). Chapter 14 - Mortgage bonds Paragraph 1 Background Language of draft bond May a draft bond (that is attached to the power of attorney to pass the bond) 22 be typed in a different language than the bond to be registered? Resolution No, the bond must follow the language of the draft bond (RCR38/2012). Paragraph 3.7 Paragraph 7.5 Paragraph Paragraph 3.8 Ranking clause Consent to various registration procedures Amount of the bond Property or security clause Mortgaging of a share in a long-term lease agreement May an undivided share in a registered long-terms lease agreement serve as security under a mortgage bond? Resolution Yes, provided such undivided share is held under its own separate title. RCR23/ is hereby withdrawn (RCR27/2014) Paragraph 7 Consents - Regulation 39 Disclosure of particulars in Consents Where a consent drafted in accordance with prescribed form MM is lodged, must Note that regulation 68(11A) has been repealed and replaced by Regulations 68(11B) and 68(11C) as from 15 April As Regulation 68(11B)(a) now provides that the notice of intention to apply for the cancellation of the registration of the bond must be publicised in two consecutive ordinary issues of the Gazette, this Conference Resolution is due for withdrawal. The wording in italics has been inserted by the compiler hereof. : May an undivided share in a long-`term lease agreement serve as security under a mortgage bond? Resolution: No, the Deeds Registries Act does not provide for the mortgaging of a share in a long-term lease - (RCR23/2009).