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Resolution - GHOSTDIGEST

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Resolution - GHOSTDIGEST ...

     DEPARTMENT: LAND AFFAIRS REPUBLIC OF SOUTH AFRICA

     Office of the Chief Registrar of Deeds, Private Bag X918, PRETORIA, 0001 - Tel (012) 338-7000, Fax (012) 328-3347

    REGISTRARS‟ CONFERENCE RESOLUTIONS OF 2008

A. WITHDRAWAL OF PREVIOUS REGISTRARS‟ CONFERENCE

    RESOLUTION

1/2008 The following Registrars‟ Conference Resolution is hereby withdrawn:

    ? RCR 2/2003

    ? RCR 3/2003

B. AMENDMENT OF PREVIOUS REGISTRARS‟ CONFERENCE

    RESOLUTION

2/2008 (RCR 37/2007) Property sold by executor

     “RCR37/2007 Act 66 of 1965 Property sold by executor on death by fiduciary Does conference agree that a section 42 (2) of Act No. 66 of 1965 endorsement is all that is needed when an executor in the estate of a fiduciary sells and transfers immovable property, which is subject to a fideicommissum? Resolution: A section 42 (2) Act No. 66 of 1965 endorsement by the Master is necessary [provided the fideicommissary heirs have waived their rights].”

    Resolution:

    It is established practice that the executor in the estate of the fiduciary has the

    right in terms of the Administration of Estates Act No. 66 of 1965 to sell

    immovable property directly from the estate of the fiduciaries, provided the

    Master affords an authorization in terms of section 42(2). The waiver by the

    fideicommissary heirs is not a prerequisite for the sale.

    (RCR37/2007 is amended by the deletion of the words “provided the

    fideicommissary heirs waive their rights”)

    C. PREVIOUS REGISTRARS‟ CONFERENCE RESOLUTIONS

     2

3/2008 RCR29 (1)/1966: Section 68 of Act No. 47 of 1937

    Should the owner of the land comply with the provisions of section 68(1) of Act

    No. 47 of 1937 where a personal servitude (usufruct) lapses by merger or does

    conference confirm RCR 29(1) 1966?

     Resolution

    RCR 29(1)/1966 is confirmed.

4/2008 RCR1/1991: Proof regarding erection of buildings

     In RCR1/1991 it was held that the sectional plan of extension may be registered

    subsequent to the lapsing of the duration of the right of extension relating to

    that scheme, provided the buildings have already been erected. What proof

    must be submitted to the registrar of deeds to prove that the building(s) were

    erected prior to the date of lapsing?

    Resolution:

    A certificate from the local authority that the buildings were erected prior to the

    date of the lapsing of the right of extension must be lodged.

5/2008 RCR6.5/1999: Section 93 of Act No. 47 of 1937

    In terms of Registrar‟s Conference Resolution 6.5/1999 a copy of Government

    Gazette must be lodged as proof for an application for a change of name, in

    terms of section 93 of Act No. 47 of 1937. Must this resolution still be applied?

     Resolution:

    RCR6.5/1999 is confirmed.

6/2008 RCR 29/2002: Incorporating restrictive / home owners association

    conditions contained in section 11(3)(b) schedule in new deed of transfer

    The section 11(3)(b)-schedule of conditions must be checked to ascertain

    whether there are restrictive conditions. If there are restrictive conditions, the

    conveyancer must lodge the necessary consent, authorization or clearance. If

    such conditions are not as yet contained in the title deed, must the conveyancer

    incorporate it in the deed of transfer?

    Resolution:

    RCR29/2002 is confirmed. When a sectional title register is opened and

    restrictive conditions exist and/or are imposed in terms of section 11(2) of the

    Act, such conditions must be incorporated in the certificates of registered

    sectional title and brought forward into all successive deeds of transfer. In

    respect of existing schemes, where the conditions were not brought forward into

    the title deeds, it must be brought forward into the new deeds.

     7/2008 Regulation 45(1) of Act No. 47 of 1937

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    3

    How must the phrase “Conveyancer practising at the seat of the deeds registry”

    in regulation 45 (1) of Act No. 47 of 1937 be interpreted in so far as boundaries

    or a radius from a deeds registry is concerned?

    Resolution:

    RCR18/2003 is confirmed.

8/2008 RCR7/2005: Reference to Company Resolutions

    Is there a need to make reference to a resolution or power of attorney in deeds

    and documents?

    Resolution:

    RCR7/2005 is confirmed.

9/2008 RCR 5/2007 Proof of unnamed testate heirs

    The Master only requires that a next of kin affidavit be filed in cases where the

    deceased did not leave a valid will. There are cases where wills bequeath

    property to “my child or children”. How should these children be proved? RCR

    5/2007 provides that a next of kin affidavit must be called to prove heirs

    (intestate or testate). What if there is no next of kin affidavit filed at the Master?

    Can the liquidation and distribution account be accepted as proof?

     Resolution:

    A next of kin affidavit must be lodged. The liquidation and distribution account

    is not acceptable.

10/2008 RCR13/2005 and RCR9/2007: Rates clearance certificates for vesting

    transfers

    In terms of RCR13/2005, as confirmed by RCR9/2007, a rates clearance

    certificate is a requirement for an expropriation transfer, however, with regard to

    vesting transfers, the provisions of section 20 of Act No. 63 of 1975 is not

    applicable and thus rates clearance certificates should not be insisted upon in

    such circumstances. Does conference concur?

     Resolution:

    Conference does not concur. A rates clearance certificate must be insisted

    upon with all vesting transfers, unless exempted in terms of section 118 of Act

    No. 32 of 2000.

11/2008 RCR30/2005: Vis-à-vis CRC 3/1983

     RCR30/2005 contradicts CRC3/1983. Which authority must be followed?

    Resolution:

     RCR30/2005 must be followed.

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    4

12/2008 RCR35/2005 and RCR2/2006: Restriction on alienation

     Certain offices do not apply RCR35/2005 which relates to a request for a

    consent when mortgaging land. Is the ruling peremptory or merely directory?

     Resolution:

    RCR35/2005 as amended by RCR2/2006 is confirmed and must be applied

    uniformly.

13/2008 RCR21/2006: Circumstances under which deeds are lost

    Reference to the fact that the circumstances under which the deeds were lost

    are not known, need not be disclosed in the application. Regulation 68(1)

    stipulates that the circumstances must be mentioned where possible. If the fact

    that the circumstances are unknown are not mentioned in the application, it may

    be interpreted that the applicant ignored the fact that the circumstances must

    be mentioned. How will the examiner know whether the circumstances are

    unknown or whether the circumstances are known, but not mentioned? This will

    result in the examiner raising notes to include the circumstances when nothing

    in this regard is mentioned.

     Resolution:

     RCR21/2006 is confirmed.

14/2008 RCR31/2006: Abbreviation of registration number companies, close

    corporations, trusts, etc.

    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.

15/2008 RCR44/2006: Proof of VAT on Land Reform Transactions

    The resolution taken is confusing as it is open to two different interpretations. Is

    proof required, or not?

    Resolution:

     No.

16/2008 RCR15/2007: Reversionary Rights and Pre-emptive Rights

    Uncertainty prevails as to what practice should be followed when cancelling

    reversionary - and pre-emptive rights. Is an underhand waiver acceptable or

    should the provisions of section 68 (1) of Act No. 47 of 1937 find application?

    Resolution:

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    5

    RCR15/2007 is confirmed.

17/2008 RCR42/2007: Lapsing of Right of Extension of Sectional Title Scheme

    RCR42/2007 must be revisited as it causes undue hardship in the case of

    transfers and bonds.

    Resolution:

     RCR42/2007 is hereby confirmed.

D. DEEDS REGISTRIES ACT NO. 47 OF 1937

18/2008 Section 4(1)(b) of Act No. 47 of 1937

    Should the use of the words “the error” in section 4(1)(b) of Act No. 47 of 1937

    be interpreted that only one error per application can be amended or is it

    permissible to amend multiple errors with one application? What if different

    errors occur in different titles?

     Resolution:

    Multiple errors may be amended in one application, albeit different errors in

    different titles.

     19/2008 Section 4(1)(b) of Act No. 47 of 1937

    Is it a requirement that a conveyancer must be “duly authorized” in terms of a

    power of attorney to bring an application in terms of section 4(1)(b) of Act No.

    47 of 1937?

     Resolution

    No, a conveyancer needs not to be “duly authorized” in terms of a power of

    attorney.

20/2008 Section 34 of Act No. 47 of 1937

    Where an owner of the whole or a share in land wishes to fractionalise his/her

    title, may such owner apply the provisions of section 34(1) as his/her common

    law right or must he/she be a co-owner to apply it?

    Resolution:

     No. It should not be allowed until such time the Act is amended.

21/2008 Section 40 of Act No. 47 of 1937: Tie- Conditions

    Where two pieces of land are consolidated and the components are subject to a

    tie-condition, how should such condition be dealt with? Does lapsing occur or

    must section 68(1) find application?

    Resolution:

    Section 68 is not applicable. The condition must be perpetuated in the

    certificate of consolidated title and the registrar must endorse the certificate of

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    6

    consolidated title as to the lapsing of the tie-condition. However, the holder of

    the right must consent to the issuing of the certificate of consolidated title.

    22/2008 Section 45bis(1A)(b) of Act No. 47 of 1937: Change of Matrimonial Property

    Regime

A right of extension is registered in the joint estate of parties married in

    community of property. The parties change their matrimonial property regime in

    terms of

section 21 of Act No. 88 of 1984 to out of community of property and the court

    orders that the right of extension must be divided equally between the spouses.

    The provisions of section 45bis(1A)(b) cannot be invoked vide RCR15/2006.

    How must registration occur as applying the provisions of section 25(4) will lead

    to absurdity?

    Resolution: The status quo followed in the offices must remain, pending the amendment of

    Act No. 47 of 1937.

    E. REGULATIONS TO ACT NO.47 OF 1937

    23/2008 Regulation 35(1)(f) of Act No. 47 of 1937

According to Jones the “State reservation clause” must be omitted where the

    transfer is effected to the Republic of South Africa. Does Conference agree and

    must this clause be omitted if transfer is effected to Provincial Government and

    Local Government?

    Resolution: State reservation clauses must be omitted if transfer is effected to National and

    Provincial Government, but not a transfer to Local Government.

    24/2008 Regulation 84: Registration Fee for Leasehold Transfers

The initial registration of a leasehold transfer is exempt from the payment of a

    registration fee, however, uncertainty exists as to whether the subsequent

    transfer of leasehold is also exempt from the payment of a registration fee.

    Resolution: All leasehold transfers are exempt from the payment of registration fees in

    terms of section 52(15) of the Black Communities Development Act No. 4 of

    1984.

    25/2008 Regulation 84: Fee on GPA

What fee is payable for the issuing of a copy of a general power of attorney? Is

    it deemed to be a document or a deed as per the schedule of fees?

    Resolution:

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    7

    A general power of attorney is deemed to be a document and must be charged

    the fee as prescribed under Item 3(a)(ii) of the Schedule of Fees.

26/2008 Regulation 84: Share Block Conversion

    What fee is payable where a sectional transfer is being registered for the

    conversion of a share block into sectional title?

    Resolution:

     The registration fee as prescribed under item 8(d) must be charged.

F. GENERAL (ACT NO. 47 OF 1937)

27/2008 Registration of Foreign Antenuptial Contract

     In terms of Ex parte Van Borselen et Uxor 1942 TPD 206, where a foreign

    antenuptial contract is lodged for registration, it is held that an affidavit from a

    practicing lawyer, solicitor or barrister from such foreign country, must be

    lodged confirming that the contract is in accordance with the law where it was

    signed. Is this practice still upheld?

    Resolution:

     Yes, this practice must still be upheld.

28/2008 Donation in Antenuptial Contract

    Where a donation is contained in an antenuptial contract, which donation only

    becomes effective on the death of the donor, must a caveat be noted for

    purposes of VAT as no transfer duty is payable?

    Resolution:

    Yes, a caveat must be noted with regard to the donation, in the light of

    section 92 of Act No. 47 of 1937.

29/2008 Proof of Adiation / Repudiation

    Who has the capacity to adiate or repudiate the terms of a joint will, should the

    surviving spouse die before exercising such option?

    Resolution:

    In terms of Eyssel and Another v Barnes NO and Others, (Unreported Case

    3617/92) handed down by the High Court, NPD, it was held that the power to

    adiate or repudiate vests in the heirs and not the executor.

30/2008 Cancellation of Mortgage Bond

    Where it is endeavoured to cancel a mortgage bond but on closer perusal it is

    determined that the bond is passed by the mortgagor in favour of the mortgagor.

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    8

    Can such cancellation be effected by the „correct mortgagee‟ where a

    section 4(1)(b) amendment is brought by such „correct mortgagee‟?

    Resolution:

    Proof as to the correct situation must be called for in terms of section 4(1)(a) of

    Act No. 47 of 1937. The bond must then be amended with a section 4(1)(b)

    application, made by the „correct mortgagee‟, where-after such bond must be

    cancelled. The consent of all interest parties must be insisted upon.

31/2008 Massing of estates of parties married out of community of property

     Spouses are married out of community of property. They mass their estates

    and provide that on the death of the first dying the land must devolve on the

    surviving

     spouse, subject to a fideicommissum or FCR in favour of the children. What act

    of registration must be effected where the land is registered in the name of the

    surviving spouse?

    Resolution:

     An endorsement in terms of section 3(1)(v) of Act No. 47 of 1937.

32/2008 Application for certified copy of title deed

    Who has the capacity to apply for a certified copy of a title deed registered in

    the name of a company, where the sole director of such company has died?

     Resolution:

    The executor may apply. It is the responsibility of the conveyancer to

    determine whether the executor has been entered into the register of members

    of the company (see Corporate Law by Cilliers, Benadie, Botha, Oosthuizen en

    Delarey, 1987 edition, Chapter 11, page 131).

33/2008 Identity number and status of insolvent

    It is established practice to disclose the identity number and status of an

    insolvent when the trustee transfers land as a result of a sale in insolvency.

    However, the status may have changed since registration, and as the trustee is

    the “owner”, the conveyancer does not assume responsibility for the

    correctness thereof. Should the identity number and status as disclosed in the

    title deed be followed, or must the registrar of deeds assume responsibility for it?

    Resolution:

     The status and identity as disclosed in the title must be followed.

34/2008 Copy of Power of Attorney

     A certified copy of a power of attorney that has been registered in one office is

    lodged for registration in another office and it is found to be unfit for registration.

     How must the matter be addressed?

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

    9

    Resolution:

     The power of attorney must not be registered until the discrepancies have been

     addressed in the first office of registration. Alternately, a new power of attorney

     must be registered.

    35/2008 Office Fees on Mortgage Bonds of First Rand Bank

    Confusion occurs in determining the office fees pertaining to “First Rand Bank”

    Bonds because the capital amount and the additional amount are added

    together and in some instances they are separated. Where the amounts are

    separated it is easy to determine the office fees. The problem arises when the

    capital amount includes the additional amount. Is it the duty of the examiner to

    subtract the additional amount from the capital amount in order to determine the

    office fees?

    Resolution:

     Item 8(b) must be amended to make reference to „A bond of which the capital

    amount‟, as resolved by the Deeds Registries Regulations Board.

    36/2008 Condition to capitalize the amount paid for a servitude

    Is a notarial deed seeking to register a condition to capitalize the amount paid

    for a servitude contained in an already registered notarial deed of servitude

    registrable?

    Resolution:

    Yes, in terms of section 3(1)(o) read in conjunction with section 3(1)(r) of Act No.

    47 of 1937.

    37/2008 Transfer of property in insolvent estate

    Can the trustee in an insolvent estate transfer property, vested in the trustee

    before the rehabilitation of the insolvent, 10 years after the insolvent was

    automatically rehabilitated?

    Resolution:

    No. See the provisions in section 25 of Act No. 24 of 1936.

    38/2008 Lost Notarial Deed

    If an original notarial deed of servitude is lost and the deeds office copy is also

    lost but the protocol copy is still in possession of the notary protocol copy, may

    a deeds registry copy be generated from the protocol copy?

    Resolution

    A substituted notarial deed canceling the existing servitude and replacing the

    lost notarial deed must be registered.

    39/2008 Effect of sequestration on property of the spouse of the insolvent married

    out of community of property

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

     10

    The notice of sequestration of an insolvent person, married out of community of

    property, is also noted against the solvent spouse. When the solvent spouse

    deals with his/her property is a certificate from the conveyancer that the

    sequestration does not apply to the solvent spouse sufficient?

     Resolution:

    No, a trustee must issue a release.

    40/2008 General Power of Attorneys Destroy or deliver after registration

    Before microfilming was introduced in deeds registries the agent was left

    without his/her instrument of appointment once the general power of attorney

    has been registered. The remedy for him/her was to apply for a certified copy.

    The question, which now arises, is whether the general power of attorney

    should be destroyed after scanning or should it be delivered to the firm?

    Resolution

    Deeds registries must destroy the general power of attorney after scanning to

    avoid further dealings with a power of attorney, which may possibly already be

    revoked.

    The power of attorney is in any case not registerable in any other deeds

    registry.

    41/2008 General Power of Attorney granted by Bank / Company after registration

    change of name / transfer of assets

    Can an agent appointed by a Bank / Company still act in terms of the power of

    attorney which was granted and registered by the Bank / Company who

    subsequently changed its name or transferred its assets to another entity?

    Resolution:

    (a) The power of attorney will terminate tacitly by the transfer to the new entity

    which is formed.

    (b) The power of attorney will not terminate with a name change.

    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

     Departement van Grondsake Kgoro ya tsha Naga Umnyango wezoMhlaba

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