Interesting Facts Pertaining to Conveyancing – Part IV – Conveyancing News

DID YOU KNOW: 

• A registrar of deeds has the power, in terms of section 4(1)(a) of the Deeds Registries Act 47 of 1937 (DRA), to require proof on affidavit if he/she is not satisfied with a conveyancer’s certificate (RCR 11 of 1950). 
• When an agreement was made by a deceased during his/her lifetime, the bond may be passed in favour of the estate of the deceased, provided proof is submitted that the deceased agreed to the acceptance of the bond for the balance of the purchase price during his/her lifetime. Alternatively, the bond can be registered by order of court (RCR 17 of 1950). 
• Deeds Registries allow for heirs to redistribute property without reference to other heirs, which is regarded as giving effect to the letter and spirit of section 14 of the DRA (RCR 2 of 1951). 
• Conditions, which obviously do not apply by reason of their situation to a portion of land, should be omitted from certificates of registered title (RCR 5 of 1951). 
• Marriages governed by the laws of a foreign country should be described as “governed by the laws of the country of domicile of the husband” and not “by the laws of another country” (RCR 35(a) of 1951). 
• The onus to determine the consequences of a foreign marriage is not that of the deeds registries, but that of the conveyancer (RCR 35(b) of 1951). 
• Heirs cannot create reciprocal rights and obligations inter se in a redistribution agreement, in respect of the creation of restraints on alienation (cf De Wet v De Wet 1951 4 SA 212 C and RCR 3 of 1952). 
• Servitudes created reciprocally over or in favour of portions of a property in favour of or over the remaining extent thereof may be embodied in the transfers when all subdivisions and the remainder are transferred simultaneously (RCR 7 of 1953). 
• The following procedure should be followed when shares are transferred: 
  • Where the shares of the transferees differ as amongst themselves, but the deed conveys similar shares in different properties, the description should be as follows: “…hereby cede and transfer … to and on behalf of 
    (1) A …..3/10 share, (2) B…..1/10th share, (3) C…..1/10th share, 
    together comprising ½ share in the following properties their heirs, etc. … 
    (1) ½ share in X property, (2) ½ share in Y property” 
  • Where the position is similar to that above, but the deed conveys different shares in the different properties, separate deeds must be passed (RCR 5 of 1954). 

• If a notarial bond is passed by a firm carrying on business in a specified locality, the place of residence and the place of business of the members of the firm must be disclosed and the provisions of section 62 of the DRA must be complied with regard to the registration of the bond (RCR 16 of 1954). 
• Where a conveyancer, acting under a mandate to perform an act in a deeds registry, has implied authority to do all necessary ancillary acts, he/she may under such authority apply on behalf of the owner in terms of sections 34, 43 and 44 when action under such sections is necessary for the performance of the act for which he/she is authorized. A conveyancer may also apply for the necessary endorsement of the title in terms of section 68(1) of the DRA, provided proof is furnished of the facts (RCR 44 of 1954). 
• While there is no provision for amending an erroneous purchase price in a deed, a registrar can make an appropriate endorsement on production of satisfactory proof, in terms of section 3(1)(v) of the DRA (RCR 4 of 1956). 
• The creditor who takes action under an attachment and procures sale of the property is entitled to demand that transfer be passed pursuant thereto, without the withdrawal of earlier attachments by the sheriff (RCR 5 of 1958). 
• With regard to notarially attested instruments it is common practice to require two witnesses, which practice does not appear to lack substance (see the obiter dictum in Meintjies v Registrar of Deeds 1915 T 228 and in Commissioner for Inland Revenue v Graaf 1935 A at 221 and RCR 20 of 1958)). 
  • Where an executor who has an unsecured claim which he/she is unable to liquidate immediately is offered and accepts security in the form of a bond, such bond may be registered. 
  • In terms of the law advisers’ opinion 1/804/26 dated 6th June 1949, where an executor has sold property, it is permissible to register a bond direct to the heirs when they have agreed to accept such bond as a part of or in full satisfaction of their inheritance. 
  • Either a redistribution agreement or the consents of all the heirs must be produced to show that specific bonds were awarded by agreement to a particular heir (RCR 1(r) of 1959). 
• Where a usufruct is registered in favour of persons married in community of property, and the husband acquires the bare dominium, there is no merger of the wife’s usufruct. Where the usufruct flows from testamentary disposition the principle of the jus accrescendi should be applied to the usufruct remaining. Where the usufruct is an inter vivos creation, the question of the extent of the wife’s usufruct is one which depends on the wording of the instrument in which the usufruct was created (RCR 32 of 1961). 
• Where the husband is domiciled in a foreign country and the parties enter into an antenuptial contract regulating the consequences of their marriage (see Johnson v Registrar of Deeds 1931 C 228), the spouses must be described as being married which marriage is governed by the laws of that country (RCR 64 of 1961). 
• In view of the decision Bodasing v Christie N.O. 1961 3 SA 553 A, when a bond is registered over land subject to a pre-emptive right, the bond should disclose such right. Whether a waiver is necessary or not may be left to the conveyancer concerned (RCR 35 of 1962). 
• It is competent that a mandatory may act him/herself under a general power of attorney whilst a power of substitution is still in existence (RCR 51 of 1962). 
• It is essential in redistribution agreements that the capacity of the contracting parties should be proved (RCR 13 of 1964). 

Please do not hesitate to contact us for more information 

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278