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LPL4804 Conveyancing Law Questions & Answers
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1STUDY UNIT 1
OVERVIEW OF SOUTH AFRICAN LAND REGISTRATION SYSTEM
A positive system implies the following:
State guarantees to bona fide third parties regarding the accuracy of the state deeds register.
State examines/investigates documentation and transactions for legality.
State completes and maintains a register of title.
Transfer takes place when the register of title is annotated and any deeds are merely endorsed.
Thus, new deeds are not necessary for each transaction - the main source of information is the
deeds register which is merely annotated/updated.
Linking of different transactions occurs.
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State is liable for shortcomings regarding accuracy of the deed register
deeds register is characterised by a high degree of state interference
A negative system implies the following:
State gives no guarantees to bona fide third parties regarding the accuracy of the state deeds
register - cannot rely on the accuracy of the State records
State simply records deeds submitted at face value - no examination of the deeds or investigation
by the State prior to recording.
Transfer is effected in the new deed, not when the state deeds register is annotated/updated - a
new deed must be executed for each transaction.
The State incurs no liability for inaccurate or incomplete records.
Parties often guarantee their rights by taking out private insurance.
There is minimal state interference
Positive characteristics of SA system
The public does rely on the accuracy of the deeds registry data, although no guarantee is given by
the state
The state examines/investigates documentation and transaction for legality
The state completes and maintains a register of title
Linking of transactions occur
The state in South Africa is under specific circumstances liable for shortcomings
The state register of property in South Africa is subject to a great deal of state supervision and
intervention/interference
Negative characteristics of the South African system
The state gives no guarantees of accuracy of state register
Transfer is generally effected in a new deed of transfer for each transaction
The state as a general rule does not incur liability for inaccurate or incomplete records, except in
very specific limited circumstances
In South Africa land registration is based on statute
is unique because it is nominally negative, but has some characteristics of a positive system as well
The nominally negative South African land registration system reflects elements of both the positive
and the negative registration systems discussed above.
The South African system of land registration, despite being nominally a negative system, remains a
reliable source of information about the legal position of real rights registered in respect of
immovable property; in practice third parties do rely on its accuracy.
Therefore, in this sense it reflects a positive characteristic.
STUDY UNIT 2
THE CONVEYANCER
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The conveyancer
What does it take to become a conveyancer in SA
Not just anyone can be a conveyancer because the Attorney’s Act provides that a person cannot be
enrolled as a conveyancer until he/she has been admitted to practise as an attorney.
a conveyancer is an attorney who has:
specialised in the preparation of deeds and documents destined for registration in the deeds
registry
passed additional national Law Society conveyancing exams
been admitted to practice by the High Court
been enrolled on an electronic register of conveyancers maintained by the registrar of deeds in
terms of the Deeds Registries Act 47 of 1937.
May a mere attorney act as a conveyancer?
Yes, attorneys practicing in the former Transkei before 1997 may fulfil all the functions of conveyancers, but
as a general rule, no, attorneys cannot act as conveyancers.
Duties of the conveyancer
EMPLLE
ensure validity of deed of alienation
manage financial matters + transactional process
prepare deeds and documents
link simultaneous transactions
lodge deeds
execute and register deeds
1. Ensure valid agreement of sale of land (deed of alienation)
Alienation of Land Act - alienation” of land refers to the sale, exchange, or donation of land
provides that no alienation of land will be of any force or effect unless it is contained in a deed of
alienation, signed by the parties, or their agents acting on their written authority
Only once the conveyancer is certain that there is indeed a valid sale can he/she proceed with the
further transfer of the property.
2. Manage financial matters and the transaction process
In every registration transaction where there is a transfer of rights in exchange for a payment of
money, the conveyancer must manage the financial matters
before lodging the deeds and again before execution and registration of the deeds, the conveyancer
must check and double-check all the calculations, guarantees and undertakings
3. Prepare deeds and documents and take responsibility for correctness of facts
“to prepare” a deed means to check the contents thereof thoroughly and guarantee correctness of
facts and take responsibility in terms of section 15A and regulation 44A.
The purpose of the preparation clause
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is to firmly place the responsibility for the documents and deeds prepared by the conveyancer with
that conveyancer
– who coordinates and manages the particular transaction
and not with the registrar, who has no knowledge or control of that particular transaction until it is
lodged for registration.
As the conveyancer is now responsible and liable (to the extent provided for in regulation 44A),
It is not necessary to lodge proof of certain facts contained in the deed, such as identity numbers
and marital status, at the deeds office.
This saves time for the deeds office personnel, who will simply accept the correctness of the
allegations of the preparing conveyancer in this regard.
Section 15 of the Deeds Registries Act 47 of 1937
before a registrar of deeds may attest, execute or register a deed of transfer, certificate of registered
title or a mortgage bond for registration,
it must be prepared by a conveyancer (unless any other Act provides differently).
Similarly regulation 43(1) of the Act
Provides that all deeds of transfer, certificates conferring title to immovable property, deeds of
cession and mortgage bonds must be prepared by a conveyancer.
Regulation 43(2)
A conveyancer must also personally initial all alterations or interlineations in any deed, certificate,
cession or bond he/she prepares,
and initial every page of that deed, certificate, cession or bond not requiring the conveyancer’s
signature.
Regulation 44(2)
Examples of material alterations or interlineations to the documents and deeds
Which must be initialled by the preparer of the deed/document,
are amendments to:
o names, identity numbers or marital status of transferor or mortgagor
o date of sale
o description of property – erf or portion number of property
o purchase price
o amount of mortgage bond
Deeds that MUST be prepared by a Deeds that may be prepared by an attorney,
CONVEYANCER notary or conveyancer
Deed of transfer Partition agreement
Partition transfer deed Power of attorney
Cession of a mortgage bond Consent to cancellation of a mortgage bond
Mortgage bond Application for correction in terms of sec
Cession of a notarial bond 4(1)(b)
The preparers of the above documents, whether an attorney, notary or conveyancer, likewise
accept responsibility under regulation 44A and section 15A(1) and (2)
for the correctness of the facts in the documents they have prepared.
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