Summary LPL4804 - Conveyancing_summaries_updated_1.

LPL4804 - Conveyancing_summaries_updated_1. 1. Differentiate between the positive and negative deeds registration systems. A. A positive system implies the following: a. The State guarantees to bona fidethird parties that the state register in the designated deeds registry is an authoritative record of the rights to clearly defined units of land. b. The State examines/investigates documentation and transactions for legality. c. The State completes and maintains a register of title. d. Register of title is linked to a cadastral system of maps and diagrams. e. Transfer takes place when the register of title is annotated and any deeds are merely endorsed. f. From this it follows that new deeds are not necessary for each transaction  as the main source of information is the deeds register which is merely annotated/updated. g. Linking of different transactions occurs h. The State guarantees the accuracy of the deed register and is liable for shortcomings. i. Such a deeds register is characterized by a high degree of state interference  (as for instance in the Torrens system, created by Sir Robert Torrens and which is still being used in New Zealand and in New South Wales, Australia) B. A negative system implies the following: a. The State gives no guarantees to bona fidethird parties regarding the accuracy of the state deeds register. b. The State simply records deed submitted at face value. c. There is no examination of the deeds or investigation by the State prior to recording d. Transfer is effected in the new deed, not when the state deeds register is annotated/updated so a new deed must be executed for each transaction. e. There is usually no link to a cadastral system of maps and diagrams f. Third parties cannot rely on the accuracy of the State records, which might give an inaccurate or incomplete picture g. The State incurs no liability for inaccurate or incomplete records h. There is minimal state interference (as for instance in the land registration system in the Netherlands) 2. Discuss which system applies in South Africa, substantiate your choice with references to cases a. In SA land registration is based on statute (Alienation of Land Act and Deeds Registries Act) and is unique because it is nominally negative, but has some characteristics of a positive system as well. b. While the State does not guarantee the correctness of the data contained in the SA deeds registries, it does not simply record deeds at face value either.  It provides owners/real right holders with security of title.  Both titleholders and bona fidethird parties do rely on the correctness of the information contained in the title and deeds registry records.  It is also unnecessary for SA titleholders to insure their rights in case a third party should subsequently prove to have a better title to the property, as is the case with other negative registration systems. c. Barclays Nasionale Bank v Registrateur van Aktes – land which was subject to a mortgage bond was transferred to a bona fidepurchaser without the bond first being cancelled.  The court held that the mortgagee’s secured real right was not terminated by the transfer, and that the transferee therefore acquired the land subject to the bond.  Until the mistake is discovered and rectified, the same principle will apply to all subsequent transfers.  This means that the mortgagee’s rights remain intact to the detriment of subsequent transferees although a number of subsequent transfers may have been registered. d. Standard Bank v Breitenbach– relates to the reliability and completeness of deeds office information.  There the court held that a mortgage bond that had erroneously not been endorsed on the title deed of the land was in fact duly registered once the registrar had signed the mortgage bond, and that a bona fidepurchaser of the land therefore acquired the land subject to the bond. e. Legato McKenna Inc v Shea (SCA) – following a motor vehicle accident in which Ms Shea suffered severe brain injuries making it impossible for her to manage her own legal and financial affairs, attorney McKenna of Legator McKenna Inc was appointed by the court as curator in March 2002.  Then before receiving a letter of appointment from the Master, in April 2002, McKenna sold Ms Shea’s immovable property to Mr and Mrs Erskine, in order to pay Ms Shea’s pressing debts.  With his signature McKenna inserted the words “curator” and “Subject to the approval of the Master”.  The Master’s appointment in favour of McKenna was issued in June 2002 and the Master’s consent to the sale followed on 17 July 2002.  The transfer in favour of the Erskine’s was registered on 27 July 2002 and in March 2003.  Ms Shea recovered to such an extent that the court declared her once more capable of managing her own affairs.  Approximately a year later Shea applied to court for, among others, an order for the return of the immovable property against repayment of the purchase price.  The Erskines in turn instituted a conditional damage claim against McKenna for R1.7m should the immovable property be returned to Shea, based on McKenna’s breach of his implied warranty that he was authorized to sell the property.  In the court a quo Shea succeeded.  The sale was declared void, so was the subsequent registration of transfer in the deeds office.  On appeal this decision was reversed and the abstract theory of the passing of ownership applied.  It has thus now been definitively decided that the abstract theory of passing of ownership applies in SA.  This means that even though the original causaof a transaction registered in the deeds office may be defective, if there is a real agreement to transfer ownership and both parties have performed under that real agreement, then the subsequent transfer is valid. NB** In terms of the abstract theory, there are 2 requirements for passing ownership: 1) Delivery: In the case of immovable property, this is effected by registration of transfer in the Deeds office. 2) Real agreement: The intention of the transferor must be to transfer ownership and the intention of the transferee must be to become the owner of the property. Mc Kenna’s mistake about the validity of the sale had no effect on the effectiveness of the real agreement. In addition to other delictual or contractual remedies one may have against the conveyancer, a prejudiced party may in some cases recover damages from the State under s 99 of the Deeds Registries Act. However, the claimant must prove: the loss resulted from an act or omission of a registrar or official employed in a registry the act or omission was committed in bad faith or due to failure to exercise reasonable care and diligence 3. Discuss the linking of deeds a. Deeds that must be registered simultaneously for financial reasons, although prepared and lodged by different conveyances, can be linked as a batch b. By completing their lodgment covers in a specific way and c. Lodged on the dame day in separate lodgment covers. d. The deeds are then examined/checked together by the deeds office personnel as a batch and are registered simultaneously as a batch. e. The linked deeds are all deemed to be registered only when the last transaction in the batch has been signed by the registrar. 3.1 why is it necessary, and a. It is usually done because the finances of the various transactions are linked. 3.2 How it is done. a. A number is allocated to each deed for execution or document for registration (sometimes called units). b. The nature of the different transactions and the linking of the deeds must be indicated by the conveyancers on the front covers of all the linked deeds. c. If the lodgment covers do not indicate a linking but instead each transaction cover shows only a single transaction, the transactions will be registered individually. d. If the covers of the entire linked batch of deeds do not correspond the deeds office, personnel will be unable to match up the linked deeds and they will be returned to the respective conveyancers with a note, “simuls not lodged”. S/U 2 – P 11 – THE CONVEYANCER 1. Definition of a conveyance a. A conveyance is a person practicing as such in the Republic, and includes a person admitted as an attorney in terms of the relevant Transkeian legislation and b. Physically practicing as such within the area of the former Republic of Transkei on or before the date of commencement of Proclamation No. R9 of 1997 c. A person cannot be enrolled as a conveyance until he has been admitted to practice as an attorney. 2. What does it take to be a conveyance in SA A conveyance is an attorney who has a. Specialized in the preparation of deed and documents destined for registration in the deeds registry. b. Passed additional national Law Society Conveyancing exams. c. Been admitted to practice by the HC. d. Been enrolled on an electronic register of conveyancers maintained by the registrar of deed in terms of regulation 16 of the Deeds Registries Act 47 of 1937. 3. Duties of a conveyance a. Ensure validity of deed of alienation – s 2 of the alienation of Land Act b. Manage financial matters and transaction process c. Prepare deeds and documents – guaranteeing correctness of facts, accepting personal liability and complying with format requirements – s15, 15A and regulation 44 and 20 of the Deeds Registries Act 47 d. Link simultaneous transactions – s 13 of the Deeds Registries Act 47 e. Lodge deeds – regulation 45(1) of Deeds Registries Act 47 f. Execute and register deeds in the presence of the registrar, on behalf of the transferor, if authorized by a power of attorney – s 20 of the Deeds Registries act 47 ** See study guide pages 13 – 28 for full details under these points. NB** 4. Who may prepare deeds and documents for lodgment at a deeds registry Preparation of the deed may be done by any SA conveyancer. 5. Who may lodge deeds at a deeds registry a. Deeds, bonds, documents and powers of attorney must be lodged by a conveyancer practicing at the seat of the deeds registry, b. Or by a person employed by such conveyancer, for execution or registration. c. Reg 45(1) – documents lodged on behalf of government departments may be lodged by any person in the employ of that government department, d. even though he is not a notary or conveyancer and even where that government department does not have an office at the seat of the relevant deeds registry, e. in a manner approved by the registrar 6. Which documents must be prepared by a conveyancer? a. Deed of transfer b. Partition transfer deed c. Cession of a mortgage bond d. Mortgage bond e. Cession of a notarial bond 7. Which documents may also be prepared by an attorney or notary. a. Power of attorney b. An application (s/u 11 for diverse applications relating to deeds) c. Consent to an act of registration d. Any agreement or partition referred to in sec 26 of the Deeds Registries Act 8. Name the general format requirements that all deeds lodged at the deeds office must comply with. a. Good quality A4 paper to be used b. Top half of the first page to be left bank for endorsements c. Blank spaces to be ruled through (reg 22) d. A 4cm binding margin on the lefthand side e. Only black ink to be used – no faint writing, typing or printing and no font size smaller than 2mm f. All interlineations and alterations to be initialled g. Copies of documents, the originals of which are lodged in government offices, to be certified by a notary, conveyance or head of that government office. S/U 3 – P 29 THE REGISTRAR OF DEEDS 1. Discuss the duties of the registrar of deeds (S 3 of the Deeds Registries Act) a. Take charge of and preserve all records b. Examine all deeds, which entails:  Checking that all the legal provisions relating to the transaction have been complied with  Checking and disposing of interdicts against the relevant persons and property  Endorsing the relevant deeds and documents to give effect to such registration or law  Updating the deeds registry records by recording the details of the new registration. c. Record interdicts – e.g.  General interdicts and court orders  Attachments  Caveats  Liquidation and judicial management  SurveyorGeneral interdicts  Rehabilitations d. Keep registers e. Give access to public registers and records * See s/g pages 3132 for details on the duties of the registrar. 2. Discuss the powers of the registrar of deeds. a. The registrar may require the production of proof, by affidavit or otherwise,  of any fact necessary to be established in connection with any matter or thing sought to be performed or effected in his registry in respect of deeds or documents lodged for registration.  The registrar may therefore refuse registration pending production of further documentary proof  or even require parties to obtain a court order authorizing registration. b. The registrar may rectify deeds or documents registered or filed in his deeds registry relating to an error in the name or the description of any person or property, or the conditions affecting the property. c. The registrar may issue certified copies of deeds or documents registered or filed in his deeds registry. d. The registrar may order that a certified copy be obtained to replace an illegible or unserviceable deed or document. e. The registrar may submit reports to court relating to applications for performance of any act in a deeds registry, where it will carry a good deal of weight. 3. Discuss the liability of the registrar of deed and conveyancer a. Sec 99 provides that the State, the registrar and officials employed at the deeds office will not be liable for damages sustained by any person due to any act or omission on their part, unless:  The act or omission was mala fideor  The registrar and/or official did not exercise reasonable care and diligence in carrying out their duties. b. As a general rule then, there is no liability for the State or the registrar, corresponding with the fact that we have a negative registration system in SA. c. In the 2 exceptions noted above the court will have to decide whether one or both the above exceptions apply. d. However, should mala fidebe an element, the registrar or official concerned may incur personal liability to the State for any loss or damage suffered. 4. Note the period of time within which deeds must be registered. a. Day 1  The conveyancer lodges the deeds or documents under cover of a lodgement slip at the lodgement counter in the deed registry. The deeds then go to the data section and then to the distribution room where the sorters allocate a value to single deeds & batches according to their degree of difficulty for examination purposes. b. Day 2  The deeds examiners examine the deeds for the first time: o They endorse the deeds to reflect the transaction to be registered o They check interdicts against the person and property to ascertain whether there are any court orders prohibiting the proposed registration or restraining dealings by the person or with the property. o They raise notes in respect of any errors or oversight in the deeds or documents or request lodgement of further evidentiary proof. c. Day 3  The deeds examiners return their quota of deeds to the distribution room from where they are scanned and distributed to the chief deeds examiners, who examine them for a second time  In particular they must ensure that all the applicable provisions of the Act have been complied with, raise further notes if necessary and decide whether the deeds, documents and batch are registrable. d. Day 4  After scanning, the deeds and documents proceed to the assistant registrar who monitors them to ensure that he agrees with the chief deeds examiner’s decision.  The rejected deeds and documents are sent to the delivery counter for scanning and returned to the relevant conveyancer, who must correct the errors and re lodge.  The restored deeds or documents and those monitored and passed by the assistant registrar then proceed to the preparation room where they are scanned, sorted and placed in the relevant Conveyancing firm’s pigeonhole for the attention of the conveyancer. e. Day 5  Unless they have obtained a prior extension from the assistant registrar, conveyancers have three days within which to comply with the notes raised by the deeds examiners, failing which the deeds will be rejected and sent to the delivery counter for collection by the relevant conveyancer. f. Days 6 – 9  The conveyancer has a further period of three days within which to appear before the registrar of deeds and register or execute the deeds or documents, failing which the batch will be rejected and returned to the delivery room for collection by the lodging conveyancer. g. Day 7  After execution of the deeds by the conveyancer and registrar and, where applicable, registration of the deeds or documents, the deeds and documents are scanned numbered, sealed and dated. h. Days 8 – 9  The data section captures the information from the registered deeds on the deeds registry computer database. i. Day 10  Any specific office instructions from the deeds examiners in respect of the deeds are attended to. j. Days 11 – 13  In the mechanized offices copies of the deeds and documents are captured on microfilm or scanned into the computer database,  after which the deeds or documents proceed to the delivery room for delivery to the lodging conveyancer,  who in turn delivers the registered deeds to the client concerned. S/U 4 – P 38 – THE DEED OF TRANSFER 1. Identify and list the clauses contained in a deed of transfer and discuss the information that is contained in each of these clauses. NB!! A. Preparation certificate clause (certificate)  This is the certificate at the top right corner of the first page of the deed of transfer which a conveyancer signs in terms of reg 43 to indicate that he accepts responsibility for the deed.  Sec 15 prohibits a registrar from attesting, executing or registering a deed unless it has been prepared by a conveyancer, or as provided for in any other law.  One such exception is the SA National Road Agency Limited where someone other than a conveyancer may prepare a deed of transfer. B. The heading  This is the title or heading indicating the nature of the deed, e.g “Deed of Transfer” or “Partition Transfer”. C. The preamble (Also go through info on s/g p 4144 NB)  The preamble contains the following: o Details of the conveyancer appearing before the registrar. o The name, identity number and status of the transferor/owner or person who granted the power of attorney authorizing the conveyancer. o The date and place of signature of the power of attorney authorizing he conveyancer to execute the transaction. D. The recital  This part of the deed of transfer is also called the causaor story and follows the preamble to the deed of transfer.  The aim of the recital is to give the reason for, or cause of the transfer enabling the registrar of deeds to judge whether the transfer is permissible and registrable. o E.g of a transfer of land that is not registrable is one which is passed as security for a debt or other obligation.  The precise wording of the recital depends on the discretion and draftsmanship of each conveyancer.  There is no prescribed form, but sufficient reasons must be given explaining why a particular piece of land must be transferred to a specific transferee. E.g. o Sale o Donation o Succession o Exchange o Rectification E. The vesting clause  Contains the name(s) of the transferee(s) to whom the property is transferred (See P 47 – 59) Know the possible variations that occur most frequently marked “NB” in the schedule F. The property clause The property clause contains information about the land being transferred. In every deed the property description should include the following particulars.  A full description of the land  The situation of the land  The extent or area of the land **See activity 4.3 on p 64** G. The extending clause  The extending clause (prescribed by reg 26 and forms TT and UU) follows immediately after the property clause in a deed of transfer.  The purpose of the extending clause is twofold: o It provides a reference to the diagram or general plan that was approved by the SurveyorGeneral for the land, so that an interested party can determine the whereabouts of the land, namely the boundaries of the land (we are based on a cadastral system). o It indicates the title under which the land was held at the time of execution of the current deed of transfer.  Extending clauses can take one of two forms: o As a diagram or original deed o As a subsequent deed of transfer H. The conditional clause  This clause contains all the conditions applicable to the land on registration of the transfer.  The concept of “condition” includes not only registered real rights in favour of others (personal servitudes and praedial servitudes) and other restrictive conditions on the land, but also rights to which the land is entitled as dominant tenement.  The conditions that appear in the conditional clause are not necessarily the only conditions applicable to the land.  The conditional clause encompasses only those conditions that have already been registered against the land and that were inserted in the conditional clause when the deed was first passed.  All other conditions imposed after registration of the title deed are endorsed against the title of the land.  Conditions must as afar as practicable be embodied in the title deed and appear immediately after the extending clause. o Only in exceptional circumstances may they be contained in an annexure.  No conditions may be included in any deed (or bond) imposing a duty or obligation upon a registrar that is not sanctioned by law.  If a deed conferring title to land contains conditions which operate pending the establishment of a local authority, once a local authority is established then all such conditions must be omitted from any subsequent deed conferring title to such land – but only if it is clear from the wording that such conditions do lapse on the establishment of a local authority. I. The divesting clause  This clause declares the previous registered owner divested of his ownership.  The last part of the divesting clause where the rights of the State are reserved must be omitted in the case where transfer is in favour of SA. J. The consideration clause  Form E prescribes that only the purchase price must be embodied in the deed.  Where transfer duty was paid on a higher amount than the purchase price, o it is established practice that the amount on which transfer duty was paid is also stated in the deed of transfer, o along with the reason why it differs from the sum of the consideration.  When the amount on which transfer duty was paid included other properties that are not transferred in the deed of transfer, this must be disclosed in the consideration clause. K. The execution clause.  This is the clause in which the act of execution by the appearer (or owner) before the registrar is recorded  Execution of the deed of transfer occurs before the relevant registrar of deeds, who attests the deed by signing it as a witness: o Once the registrar has signed the deed it is regarded as attested and registered. o Ownership passes at that moment, unless the deed is linked with others in a batch, in which case ownership passes only when the last deed in the batch is signed.  The full date when the deed was executed appears in the execution clause. 2. Define an owner  The definition of owner in relation to immovable property in section 102 of the Act stipulates in paragraph (a) that it is  “ the registeredowner or holder of the property”, including o The trustee of an insolvent estate owner o Liquidator of company or close corporation owner o Executor (or any legally recognized representative) of a deceased owner o Legally recognized representative of a minor, insane or otherwise disabled owner o If the trustee/liquidator/executor or legal representative is acting within his legal authority  However the definition of “owner” is subject to subsection (b) where “owner” is extended in relation to immovable property, real rights in immovable property and notarial bonds which are registered: o In the name of both spouses in a marriage (or civil union) in community of property, means either spouse or both spouses o In the name of only one spouse and which form part of the joint estate of both spouses in a marriage (or civil union) in community of property, means either spouse or both spouses o Under sec 17(1) in the name of both spouses in a marriage in community of property to which the provisions of Chapter III of the Matrimonial Property Act do not apply, means the husband o In the name of only one spouse, and which form part of the joint estate of both spouses in a marriage in community of property to which the provisions of Chapter III of the Matrimonial Property Act do not apply, means the husband. **NB** In the Gumede casethe matrimonial power of the husband was declared to be unconstitutional. S/U 5 – P 65 – SUPPORTING DOCUMENTS 1. List and briefly describe the supporting documents to be lodged with a deed of transfer. a. Power of attorney  A special power of attorney is the written authority to represent somebody else in performing a juristic act. b. Transfer duty receipt/exemption  A deed of transfer may be registered only if it is accompanied by a receipt or certificate issued by a competent venue service officer to prove that all taxes and duties have been paid, alternatively that the transaction is exempt from transfer duty. c. Rates clearance certificate  A registrar of deed may not register the transfer unless the prescribed certificate issued by the municipality in which the property is situated has been lodged. The certificate must be valid for 120 days from date of issue and certify that all amounts due have been paid during the 2 years preceding the date of application. d. Special consents  The title may contain conditions entirely prohibiting the transaction that is about to be registered or may require the consent of another person for the transaction to be registered. e. Insolvency/solvency affidavits  Once a person has been sequestrated, a sequestration interdict is noted against that person in the deeds registry, and this prevents that person from personally dealing with his property. It is therefore common practice for the owner of a property to be transferred to lodge a solvency affidavit to the effect that he is not insolvent, has never been insolvent, and that any court order to that effect does not apply to him but to someone with a similar name. 2. With regard to the power of attorney and the ownership issue discussed above. Discuss the contractual capacity of the following and who must pass transfer of the land. MASTER! a. A minor  Minors under the age of 7 have no contractual capacity. Both parents or the minor’s guardian signs on the minor’s behalf.  Minors between the ages of 7 and 18 have limited contractual capacity.  Such minors must be assisted by their parents or their guardian. This means that the minor can sign, but both parents or guardian must assist. Alternatively, both parents or the guardian can sign the power of attorney on behalf of the minor.  In addition to the above, either the Master of the High Court or the court itself must consent to the alienation of the immovable property of a minor.  The High Court’s consent is needed if the value of the property exceeds R250k, while the Master’s consent will suffice if the value is below R250k.  When the minor turns 18, he has full contractual capacity, and can deal with the property without assistance.  Also, if a minor gets married or is declared a major, his minority ends. b. A deceased person with reference to the joint estate – (S/U 6)  Where the land did not form part of a joint estate, the executor or representative of the deceased estate duly appointed by the Master, has contractual capacity.  Where the land did form part of a joint estate, either the deceased’s representative or executor AND the surviving spouse must pass transfer.  The surviving spouse need not participate in the following cases: When the executor is only dealing with the decease’s share Where land has been sold to pay the debts of the estate Where there has been massing of the joint estate and the surviving spouse adiated Where transfer is in favour of the surviving spouse Where the surviving spouse is the executor and has already signed as such c. Insane persons  Insane persons or lunatics have no capacity to act at all.  They cannot perform legal acts, even if through such acts they acquire rights only and do not incur obligations.  So an insane person is incapable of transferring immovable property registered in his name in a deeds registry to anyone else.  When a person has been declared mentally insane, the Master of the HC may appoint and administrator to perform or exercise on behalf of the insane person any act or right iro his property or to take care of or administer his property  A curator may not alienate property which he has been appointed to administer unless he has been authorized to do so by: A will or other written instrument by which the curator was nominated The HC (more than R250 000). The Master (less than R250 000)  Where it is alleged that the curator acting on powers conferred by the will or other instrument, a certified copy must be lodged for verification d. Partnerships  As long as the partnership consists of the same partners, land of the partnership can be transferred or otherwise dealt with, o on a power of attorney (POA) bearing the signature of the firm and of the partner who affixed the firm’s signature  If any partner in a firm wishes to transfer his share in any land of the firm to a new partnership which consists of the remaining partners plus a new partner or partners, o such transfer may not be passed unless the whole of the property is transferred to the new partnership, o and not merely the share of the disposing partner.  If land or a real right registered in the name of the partnership is acquired by any partner in his individual capacity, o transfer or cession of it must be given by all the partners of the firm. o All the partners must sign the POA or cession. e. Trusts ( mortis causand inter vivos)  A trust is usually either during the lifetime of the trust creator (inter vivos)or at the death of the creator of the trust in a will (mortis causa trust)  Trustees will have contractual capacity if: - The land actually vests in the trust (not still registered in the donor’s name) - The trustees are duly authorized to act by letters of appointment - The relevant transaction is authorized by the trust deed or will - The procedures for alienation prescribed in the trust deed or will are complied with f. Insolvent persons An insolvent person no longer has contractual capacity to deal with his property acquired prior to or during insolvency. The insolvent’s property vests in the Master or the trustee duly appointed by the Master without the title deed having to be endorsed. Only the insolvent’s trustee or the Master may transfer the property. Exceptions: Property acquired during insolvency with the consent of the trustee, may be transferred by the insolvent with a consent/waiver by the trustee Property acquired by the insolvent during insolvency, which the court on rehabilitation, declares to vest in the insolvent Property reinvesting in the insolvent automatically after 10 year rehabilitation  There must be proof that the owner is insolvent  A provisional or final sequestration order must be lodged with the registrar of deeds, if a sequestration interdict has not already been filled.  A provisional trustee does not have the power to sell property belonging to the estate he is administering. g. Married persons (in community, foreign marriages and customary marriages)  Married persons in community o Sec 11(1) of the Matrimonial Property Act abolished the common law rule in terms of which a husband had marital power over the person and property of his wife. o The provisions of Chapter III of the Act apply to all marriages in community of property, irrespective of the date on which they were entered into. o However, the abolition of the marital power does not affect the legal consequences of any act done or omission or fact existing before the abolition. o A party to a marriage in community of property ie the individual spouses, has limited contractual capacity o This means the one spouse may not alienate any immovable property forming part of the joint estate without the written consent of the other spouse. o The consent required must be given separately for each act. o Each consent must be attested by two competent witnesses and not by a commissioner of oaths only o Consent is not necessary when: Land is donated or bequeathed to a spouse subject to the explicit condition that it be excluded from cop. When the HC orders a registrar to register a deed given by one spouse When the land is excluded from cop by law When the land was purchased by a spouse with the proceeds from a property that was previously excluded from the cop  Foreign marriages o The matrimonial property regime is determined by the law of the husband’s country of domicile at the date of marriage. o A person (man or woman) whose marriage is governed by the laws of a foreign country must be assisted by his spouse when alienating immovable property. o Sec 17(6) gives the registrar of deeds the discretion to dispense with such consent if it can be proved that the assistance is unnecessary.  Customary marriages o After the CC decision in Gumede,customary marriages are now all in cop and profit & loss unless it is a polygamous customary marriage or an anc was concluded. Both spouses have limited contractual capacity & need the written witnessed consent of the other spouse to alienate immovable property unless community is excluded for some reason. A husband in a customary marriage may enter into a further customary marriage, but must make a court application to approve a written contract which will regulate the future matrimonial property system of his existing marriage & the prospective one. After the court order, no immovable property belonging to the parties which formed an asset in a joint estate may be dealt with until certain provisions of the Deeds Registries Act have been complied with.