ANNEXURE B Office of the Registrar of Deeds, Bloemfontein, Private Bag X 20613, BLOEMFONTEIN, 9300 Tel 051-4030300 Fax 051-4030370 INPUT: REGISTRARS CONFERENCE 2009 Reference: A 4/2/2/1 DIRECTORATE: LEGAL SUPPORT AND DEEDS TRAINING PRETORIA Attention: A S Reynolds 1. Regulation 68(1) Act 47/1937 application for a copy Reference to bondholder(s) in application (Affidavit) Does Conference agree that it is not necessary to refer to the particulars of the bond(s) registered over the property in the application (affidavit) applying for a certified copy in terms of Regulation 68(1) Act 47/1937? Resolution: It is not necessary. According to Regulation 68(1) the affidavit must state that the deed has not been pledged and is not being detained by any one as security for debt or otherwise. Regulation 68 (2) states that the Registrar shall require that the mortgagee shall state in writing that the deed is not in his possession and that he consents to the issue of a copy, if the land is mortgaged. 2. Section 18(3) Act 66/1965 estate. Application for endorsement of title in terms of Section 39(3) Act 66/1965 Does Conference agree that it is not possible to apply for Section 39(3) Act 66/1965 endorsement on a title where the estate is administered in terms of Section 18(3) Act 66/1965? Resolution: Yes. Conference agrees. There is no liquidation and distribution account to prove excessive hardship. 3. Title deed erroneously endorsed in terms of Section 40 Act 66/1965. Property should have been transferred to an existing trust
2 In the will the property was bequeathed to an existing trust. The title was erroneously endorsed in terms of Section 40 Act 66/1965 instead of a formal transfer to the trust. How can this be rectified? Resolution: It has always been the practice in Deeds offices to regard an application in terms of Section 40 of Act 66/1965 as a sort of caveat and not a transfer or acquisition. The executor in the estate is therefore still the registered owner and must do a rectification transfer to the existing trust. 4. Duty to inform Conveyancer that deed(s) are not registered It often happens that deeds handed in for execution by a conveyancer in the execution room are not executed due to various reasons such as mistakes detected by the Assistant-Registrar executing, notes not complied with, attachment coming in etc. Is it the duty of the Deeds Office to inform the conveyancer that the deeds were not executed or is it the duty of the conveyancer to satisfy her/him that the deeds were executed before informing the bank? In many cases the updated registration information in the system are not available the same day. Conveyancers must inform Banks (financial institutions) by 12h00 on the day of execution that deeds are registered. The question is how will they know if deeds handed in are not executed if the Deeds Office does not inform them? If not informed serious financial and other legal implications might be at stake for which a Registrar of Deeds can be held responsible. Resolution: Conveyancers must be informed. Either telephonically or by other means such as a list of deeds executed which is user friendly and displayed somewhere in the office. 5. Filing of documents with no code/fees It appears that there is not a uniform procedure in all Deeds Registries to deal with these documents. Some offices will file the document with the deed requiring the document (consent) and make a note on the relevant lodgement cover that the document is now filed in another cover. Some give it a BC number. In some offices it is lodged as a supporting document with the deed etc. This office experience the following problems: 1) The consent lodged by firm 312 is delivered to firm 18 when the document is physically moved to no 1 of the batch lodged by firm 18. (We must deliver documents to our clients after scanning as it was initially lodged.) 2) When the unidentified document is scanned, the Auxiliary service officer add it on the DRS system and because there is no code to insert, it is linked to the barcode on the cover to enable the micro section to scan the document.
3 3) The scanned image is not linked with the DRS system, does not show on the printout and cannot be tracked on DRS printouts. 4) The document cannot be tracked on DeedsView unless the pack number is inserted and the document must be searched, which is time consuming and expensive. 5) When film rolls were developed, the unidentified document did not appear on the film roll, because it was not identified and cannot be tracked on the film. 6) Unidentified documents appear constantly on the exception reports as an invalid document. 7) This might have an impact on e-drs in future. Resolution: To avoid problems and create uniformity the documents should also be numbered with a BC code and fees exempted or all these consents/documents can be numbered with the same code (D for conventional documents and SD for sectional titles). 6. Conditions in favour of Home Owners Association last proviso to Section 65(1) of Act 47/1937 Is it correct to accept only a clearance/certificate from the Home Owners Association that the transferee has bound him/herself to become a member of the Association and that the Constitution of the Association have been complied with whenever property subject to such conditions in favour of an Home Owners Association are transferred? Should consent from the transferee him/herself not be lodged signifying that he/she has accepted? In many cases these conditions are proclaimed conditions but others not. Resolution: In those cases where the conditions are proclaimed title conditions it s not necessary for the owner to accept but in all other cases acceptance in terms of the last proviso to Section 65(1) by the transferee him/herself is necessary. 7. Trust Deeds filed and registered in Deeds Registries Chief Masters Directive 2 of 2009 Chief Masters Directive 2 of 2009 imposed stricter control with regard to information/copies of trust documents registered in the offices of the Master. There are still many trust deeds previously registered and filed in Deeds Registries. Can Deeds Registries still give information and copies to clients as previously?
4 Resolution: The Masters directive is not applicable to trust deeds registered previously in this office. 8. Civil Unions Act No. 17/2006 Description in the Antenuptial Contract Civil union partners have a choice between a marriage or a civil partnership. Must the Antenuptial contract indicate which option was exercised by the partners? Resolution: The antenuptial contract must indicate whether a marriage or a civil partnership has been agreed upon. It cannot just state that a Civil Union has been agreed upon. The information is important for description of parties in deeds and documents. 9. Section 27 (2) and (3) of Sectional Titles Act (Act 95/1986) Exclusive Use Areas Body Corporate Should the bondholders of all Units and Rights of extension consent to the creation of the exclusive use areas? The Act is silent in this regard. Resolution: Yes, all bondholders must consent to the creation of the exclusive use areas. The share in the common property is part of the security. 10. Encroachments of buildings on rights of Extension It often happens that encroachment of buildings occur on reserved areas of rights of extension registered in terms of Section 25 Act 95/1986. What are the correct procedures to deal with these encroachments, especially when there are different owners involved? Can it be rectified by means of amending sectional plans as approved by Surveyor-General and the consents of all who has an interest in the rights? Resolution: No. Even if the Surveyor-General has approved such a plan, it should not be registered. The piece on which the encroachment occurs should be measured, subdivided and ceded to the owner. Notarial tie must also be registered. 11. Registration of Plan of subdivision of the section 25 right as in section 25(4) Find attached images of two sectional plans registered in Bloemfontein Deeds Registry, namely: Palinja Villas - SS144/2007 and La Bella Cascina - SS86/2004.
5 Peruse specifically the sheet reflecting the "reserved areas", being the sub-division of the section 25 right. Said sheet has been included as part of the sectional plan and so registered. 11.1 The section 25(4) of the Sectional Titles Act right to extend the scheme is reserved in portions on sheet 3 of La Bella and sheet 2 of Palinja. In other provinces there is a separate sheet for each portion of the right that is reserved [normally first the reservation of the right over the whole area which will be extended and then the subdivisions of the right]. Is the subdivision of the right to extent indicated in the initial plan of the sectional scheme registrable or must it be a separate plan of subdivision of the section 25 right as in section 25(4)? Draft resolutions: a) The conveyancers are of the opinion that section 25 of the Sectional Titles Act does not require two separate sectional plans to be lodged. To lodge the separate sectional plan for the creation of the right to extent has a high cost implication for the owner due to the fact that a separate application for registration of the plan must be lodged. or b) This is a SG prerogative and we must accept what is provided and approved by the SG.; or c) It was referred to Conference and RCR 32/2002 and RCR 33/2002 pertain. However, although referred to as "sectional plan" in RCR33/2002, it remains to be decided whether a plan of subdivision of the section 25 right is (part of) a sectional plan or not. 11.2 Although the definition of sectional plan includes a sectional plan of subdivision, it is restricted to "as provided for in this Act" and therefore relates to section 22 and the subdivision of a section only. Neither section 5, 25 nor regulation 5 provides for reflecting the subdivision of the real right on the sectional plan. In fact, the wording of section 25(4) implies that the Act does not provide for the subdivision being reflected on the sectional plan - why else prescribing that the subdivision must be done to the satisfaction of the SG? It is respectfully submitted that the "satisfaction of the SG" is still restricted to the extent that it must still comply with the provisions of the Act. Section 5 and regulation 5 clearly do not provide for the subdivision of the section 25 right being reflected on the sectional plan. Section 5 and regulation 5 must be amended to make provision for the plan for the subdivision of the section 25 right. This will also bring relief to the current problem of encroachments and will provide for an easier, cheaper procedure if
6 read with section 14(1). At this point in time such a plan should not be deemed registerable, regardless of whether the SG approved it or not. The Act first must be amended to authorize such inclusion into a sectional plan. The mere approval of a sectional plan does not automatically render it registrable. The Registrar of Deeds still remains responsible for the registration of such a plan and the correctness thereof. If found to be not registrable, how must the registration of the already registered sectional plans be corrected? Draft resolutions: (a) To correct sheet 3, the Registrar has no objection to the registration of an amending sectional plan as provided for in section 14(1) of the Sectional Titles Act. or (b) Cancel the whole scheme or obtaining an order of Court. CCE KNOESEN REGISTRAR OF DEEDS Date: 11 September 2009