Allen West Conveyancing Update

Right of Extension of a Sectional Title Scheme 
Once a real right of extension has lapsed, the court has no authority to extend the period of time (see SP and C Catering Investments (Pty) Ltd v The Body Corporate of Waterfront Gauteng and 17 Others (Case No. 84/09). 

Lost Notarial Deeds 
Where the deeds office copy and the client’s copy of a notarially attested deed, other than a notarial bond or the title to an Exclusive Use Area, is lost an order of court must be sought for the replacement thereof, alternatively a substituted notarial deed cancelling the initial lost deed and replacing same must be registered (RCR 18 of 2010). 

Application of section 4(1)(b) 
A conveyancer, not under oath, duly authorized by a power of attorney, mandating him/her to do anything that the owner may do, can bring an application in terms of section 4(1)(b), provided the error is not in connection with the personal particulars of such person, e.g. names, identity number, status, etc (RCR 20 of 2010). 

Sectional Titles and Lodgement of Rates Clearance Certificates 
When a sectional title register is opened or a phase development is exercised, and simultaneously with the opening or the exercising of the real right a newly created section is transferred, clearance certificates for the section being transferred must be lodged (RCR 26 of 2010)). 

Notarial Tie Agreement 
In terms of section 65 of the Deeds Registries Act 47 of 1937, it is not permissible to register a notarial tie agreement of a long-term lease agreement and land (RCR 44 of 2012). 

Redistribution Agreements 
Where a redistribution agreement does not fully identify the parties thereto by reference to their dates of birth and status, proof thereof must be lodged in the form of identity documents, affidavits, etc (RCR 52 of 2010). 

Reversionary Rights 
The reversionary rights alluded to in section 53(2) of the Deeds Registries Act 47 of 1937 are merely personal rights and thus when mortgaging land subject to a reversionary right binding successor in title (i.e. real rights) the provisions of section 53(2) cannot be invoked (RCR 27 of 2011). 

Wording of Section 42(1) Certificates 
A certificate provided by a conveyancer, as provided for in terms of section 42(1) of the Administration of Estates Act 66 of 1965, must follow the wording as provided for in regulation 49(1)(f) of the Deeds Registries Act 47 of 1937 (RCR 44 of 2011).

Rule 63 of the High Court Rules 
Any document executed in Namibia for use in South Africa cannot be authenticated in terms of Rule 63 (RCR 46 of 2011).

Extension of Schemes 
A developer cannot unilaterally extend the time period of a right of extension, prior to the Body Corporate being established. The developer, (inclusive of any co-developer) must cancel the existing right of extension and register a new right of extension (RCR 66 of 2011). 

Language of bond and draft bond 
The bond and draft bond must be in the same language (RCR 38 of 2012). 

Cancellation of portion of a real right of extension 
A developer who has reserved a real right of extension cannot partially cancel such right. The developer will have to cancel the right fully and re-reserve a new real right of extension (RCR 67 of 2012). 

Section 10 of the Sectional Titles Act 95 of 1986 
The provisions of section 10 of the Sectional Titles Act 95 of 1986 need not be complied with when a section belonging to a developer is sold and transferred in terms of a sale in execution (see RCR 45 of 2013). However, section 10 must be complied with where an executor, trustee, liquidator, curator, etc pass transfer. 

Bondholder not capable of being traced 
Where a bond must be cancelled and the bondholder cannot be located, or is a company which has been finally de-registered, the court must be approached for consent to cancellation of the bond, alternatively the Minister of Finance can be approached (see RCR 29 of 2013 and Rainbow Diamonds v Sanlam 1984 (3) SA 1 (A)). See also the case of G Walker Engineering CC t/a Atlantic Steam Services v First Garment Rental (Pty) Ltd 2011 (5) SA 14 (WCC) [2011] ZAWCHC 21 where the judge referred as follows: 

[6] It seems to me, with respect, that the learned judge in Broughton overlooked the effect of the proprietary consequences of a company’s deregistration. The effect of the deregistration of a company is that all its property, including any claims (Afr. ‘vorderingsregte’) it might have against third parties, thereupon vest in the state as bona vacantia (see Rainbow Diamonds (Edms) Bpk en Andere v Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy [1984] ZASCA 41; 1984 (3) SA 1(A) at 10C-12G). Thus, without any need for an act of cession or anything of the like, the state has the right, should it so decide, to prosecute the action against the defendant.” 

Please do not hesitate to contact us for more information 

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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