LPL4804-CONVEYANCING
EXAM PACK.
Conveyancing
DIFFERENTIATE BETWEEN THE POSITIVE AND NEGATIVE DEEDS
REGISTRATION SYSTEMS.
Characteristics of a Positive system (half marks)
State guarantees state registry is correct.
State accepts liability for shortcomings.
State examines dee...
DIFFERENTIATE BETWEEN THE POSITIVE AND NEGATIVE DEEDS
REGISTRATION SYSTEMS.
Characteristics of a Positive system (half marks)
State guarantees state registry is correct.
State accepts liability for shortcomings.
State examines deeds and documents before annotating the state registry.
State completes and maintains the register.
The Register of title is linked to cadastral system.
Transfer takes place when state register is annotated.
Linking of transactions occurs.
High degree of state interference takes place.
Characteristics of a Negative system
State gives no guarantees.
State simply records deeds on face value.
No checking of deeds takes place prior to recording.
Transfer is affected in the deed, not the state register.
There is no link to a cadastral system.
Third parties cannot rely on accuracy of records.
Parties guarantee rights by private insurance.
State incurs no liability.
Minimal state interference takes place.
WHICH SYSTEM APPLIES IN SOUTH AFRICA?
- based on statute: the alienation of land act 68 of 1981 and deeds registries act 47 of 1937
Components and participants
- The deeds registry
- Conveyancers
- Land surveyors
- The Surveyor-General offices
- Local authorities
- State departments
- SARS
- Property developers
- Financial institutions
The South African system is nominally negative but includes the following characteristics of a
positive system:
State accepts liability for shortcomings in specific, limited circumstances.
State examines deeds and documents before annotating registry records.
State completes and maintains a register of title.
The Register of title is linked to cadastral system.
Linking of transactions occurs.
High degree of state interference takes place.
Examples where the South African deeds register, registration does not guarantee valid title, i.e. the
deeds office records do not reflect the true owner of the property as the registered owner of the
property: where land has been expropriated by the state, the expropriating authority will become
owner of the property as from the date mentioned in the notice of expropriation, although the transfer
may not yet be registered in the deeds office, land acquired by prescription, a marriage in community
of property.
Can 3rd parties who rely in full good faith on the abstract registration system and the correctness of
incorrect data, or on incomplete data in a South African deeds registry, be protected? Even if this may
prejudice the original holders of the real right. Is a defective title validated through registration and
does it then become indisputable, even though the rights of the original holder may be negated?
- the mortgagee’s rights remain intact although a number of subsequent transfers may have
been registered
- relates to the reliability and completeness of deeds office information
- Contrary view- the South African land title automatically includes a tacit guarantee of
indisputable title
,Conveyancing
- In practice 3rd parties do rely on the accuracy of the deeds registry records. However, defect in
title of a predecessor are not cured by registration
- A prejudiced party may in an appropriate case recover damages from the state ( in addition to
other delictual or contractual remedies against the conveyancer) s99 DRA- if the claimant can
prove: the loss resulted from an act or omission of a registrar or an official employed in the
registry; the act or omission was committed in bad faith or as a result of a failure to exercise
reasonable care and diligence
- This is in contrast to a positive system
- General compensation by the state is payable to the prejudiced party from a special fund.
This security of title is the result not of a state guarantee, but of unique private-public partnership
between the deeds office and the Conveyancing profession. These two sectors rely implicitly on each
other to maintain an effective South African land registration system, each keeping to a high
professional standard.
DEFINE AND EXPLAIN WHAT IT ENTAILS TO BECOME A
CONVEYANCER
S102- definition of a conveyancer
“ a person practising as such n the republic, and includes a person admitted as an attorney in terms of
the relevant Transkeian legislation and physically practising as such within the area of the former
republic of Transkei on or before the date of the commencement of proclamation no R9 1997”
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 destines for registration in the deeds
registry
passed additional national conveyancing exams
been admitted to practise by the high court
been enrolled on an electronic register of conveyancers maintained by the registrar of deeds
in terms of reg 16
DUTIES OF THE CONVEYANCER
Duties of the conveyancer:
1. Ensure validity of deed of alienation:s2 (10 of the alienation of land at provides that no
alienation of land will be of any effect or force unless it is contained in a deed of alienation
signed by the parties, or their agents acting on their written authority. Alienation refers to the
sale, exchange, or donation of land.
There are exceptions for public auctions where as agent acts on behalf of a cc or company still
to be formed.
-comprehensive analysis of the validity requirements of an agreement for the sale of land, as
well as the added complications of trustees acting on behalf of one of the parties before being
duly authorised to do so.
2. Manage financial matters and the transaction process: in every transaction where there is a
transfer of rights in exchange for a payment of money the conveyance must manage the money,
this implies:
- The conveyancer must ensure that he/she has sufficient funds and/or guarantees and
undertakings to cover the consideration payable, including any occupational rental payable in
terms of the agreement of sale. This is one of the conveyancers primary responsibilities
- The conveyancer must ensure that the purchase price is sufficient to cover the capital and
interest required to cancel the existing bond or that the seller has alternative funding available,
as no property may be transferred unless the existing bonds have been disposed of. The
conveyance cannot predict exactly when the bond will be cancelled and thus know how much
interest will be payable to the existing bondholders
- The conveyancer must ensure that the transfer duty, municipal rates and taxes, deeds office
levies and transfer fees have been paid
, Conveyancing
- Should the conveyancer be required by the client/seller to furnish undertakings in writing on
behalf of the seller, the conveyancer must ensure that there will in fact be sufficient funds on
registration of transfer to honour these undertakings to 3 rd parties.
- The conveyancer must remember to present guarantees and undertakings for collection on date
of registration of the transaction and to pay his/her undertakings o behalf of the seller or
purchaser, before paying over the proceeds of the sale to the seller
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