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Conveyancing Questions 2018
Conveyancing (University of South Africa)
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Critical Law Studies CC © 1
Conveyancing Questions – Semester 2 – 2018
1. What does the examination of a deed by the registrar of deeds as
provided for in section 3(1)(b) of the Deeds Registries Act 47 of 1937
entail. (5)
Examination of a deed in terms of section 3(1)(b) requires that the registrar:
- Rejects any deed or document which is not legally registerable or to
which a valid objection exists
- Checks that all the legal provisions relating to the transaction have
been complied with. (This excludes the facts for which the preparing
conveyancer takes responsibility in terms of Regulation 44A, but
includes title conditions and related consents from third parties).
- Checks that there are no interdicts against the relevant person or
property prohibiting the transaction and if there are, ensures that the
interdicts are disposed of before registering such transaction.
- Endorses the relevant deeds or documents to give effect to the
registration of the transaction. For instance, if a mortgage bond is
registered against a property, the registrar must endorse the title deed
of the property to reflect that such a mortgage bond has been
registered, as well as endorsing the actual mortgage bond to reflect that
it has in fact been registered in the deeds office.
- Updating and maintaining deeds registry records of new registrations.
2. List and briefly discuss five aspects or facts for which the
conveyancer accepts responsibility by signing the preparation clause
of a deed. (5)
Regulation 44A provides that the preparer of the deeds is responsible to ensure
that:
- all copies of the deeds or documents are identical at date of lodgement.
- In the case of a deed of transfer or certificates of title to land, all the
applicable township and other conditions have been correctly brought
forward from the previous title deed.
- Where deeds and documents are being signed by an executor, trustee,
tutor, curator, liquidator or judicial manager, or by a person in any
other representative capacity, that form perusal of the documents
evidencing the appointment which have been exhibited to the
conveyancer, the signatory:
• has in fact been so appointed
• is acting within his/her powers and
• has furnished the necessary security to the Master of the Supreme
Court, if required.
- to the best of the knowledge and belief of the preparing conveyancer
and after due enquiry has been made, the names, identity number or
date of birth and marital status of any natural person who is a party to
the deed or document is correctly reflected in the deed or document;
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
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Critical Law Studies CC © 2
Conveyancing Questions – Semester 2 – 2018
and the names and registered number, if any, of any other (legal)
person or a trust are correctly reflected in that deed or document.
- Where deeds and documents are being signed on behalf of a company,
close corporation, church, association, society, trust or other body of
persons, or an institution,
- the signatory is in fact authorized, that is, proof that the signatory is
authorised by the board of directors or management to sign the
documentation, by way of a resolution
- the relevant transaction is authorized by and according to the
constitution, regulations, founding statement or trust instrument
- in the case of a deed of transfer, certificate of title or mortgage bond, the
particulars in the deed have been correctly brought forward from the
special power of attorney or relevant application.
3. Where land forms an asset in a joint estate, it is always necessary for
the surviving spouse to pass transfer of land together with the
executor in the estate of the deceased. Discuss this statement
critically. (5)
At first glance this statement appears to be correct. Land registered in the
names of parties married to each other in community of property, at the death of
one of the spouses, belong in undivided half shares respectively to the surviving
spouse and the deceased estate. Thus, like all co-owners, both the surviving
spouse and the representative of the deceased estate must transfer the land.
Note however the exceptions in terms of Section 21 of the Deeds Registries Act 47
of 1937, namely:
• where the executor is dealing only with the share of the deceased spouse;
• where the surviving spouse is the executor in the estate;
• where the land has been sold to pay debts of the joint estate;
• where there was a massing of the joint estate and the surviving spouse
adiated;
• where the property is being transferred to the surviving spouse
These exceptions deal with instances where the surviving spouses interests are
either not affected, or where he/she has already by implication consented in
writing to the transfer. Accordingly this statement is not completely correct.
4. Briefly explain what a mortgage bond is and list the requirements for
the registration of a valid mortgage bond. (5)
A mortgage bond is registered over land in order to secure an obligation of the
registered owner (the mortgagor) of that land, for example to repay money lent
to him by the person in whose favour the bond is registered (the mortgagee).
A mortgage bond therefore secures repayment of a debt, it encumbers
immovable property, and a written deed is registered in the deeds office.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
Downloaded by Koketso Silas ()
, lOMoARcPSD|5059112
Critical Law Studies CC © 3
Conveyancing Questions – Semester 2 – 2018
The following items must be present for a mortgage bond to come into
existence:
1. There must be an agreement to create a debt or obligation, which
may not be contra bonos mores.
2. There must be immovable property that is capable of being
mortgaged.
3. There must be a deed (bond) calling the mortgage right into existence
(the mortgage bond that is to be registered in the deeds registry).
5. Differentiate between a positive and a negative deeds registration
system. Indicate which system applies in South Africa and
substantiate your choice. (10)
The characteristics of a positive deeds registration system are:
- The state guarantees that the state register is correct
- The state accepts liability for shortcomings in the state register
- The state examines deeds and documents before annotating the state
register
- The state completes and maintains the state register
- registration of title to land is linked to a cadastral system
- transfer of land is deemed to take place when the state register is
annotated
- linking of different transactions occur
- there is a high degree of state involvement in the land transfer process
The characteristics of a negative deeds registration system are:
- the state provides no guarantees
- the state incurs no liability for shortcomings in the state register
- the state simply records deeds on face value
- no checking of deeds by the state prior to recording
- transfer of the land takes place in the deed, not on recordal in the state
register
- the state register is not linked to a cadastral system
- third parties cannot rely on the accuracy of the state register
- parties typically guarantee their rights by private insurance policies
- there is minimal state involvement in the land registration process
The South African deeds registration system is nominally negative because the
state does not guarantee that the South African title register is correct or
accept unlimited liability. However it includes the following characteristics of a
positive system:
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
Downloaded by Koketso Silas ()
Conveyancing Questions 2018
Conveyancing (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Koketso Silas ()
, lOMoARcPSD|5059112
Critical Law Studies CC © 1
Conveyancing Questions – Semester 2 – 2018
1. What does the examination of a deed by the registrar of deeds as
provided for in section 3(1)(b) of the Deeds Registries Act 47 of 1937
entail. (5)
Examination of a deed in terms of section 3(1)(b) requires that the registrar:
- Rejects any deed or document which is not legally registerable or to
which a valid objection exists
- Checks that all the legal provisions relating to the transaction have
been complied with. (This excludes the facts for which the preparing
conveyancer takes responsibility in terms of Regulation 44A, but
includes title conditions and related consents from third parties).
- Checks that there are no interdicts against the relevant person or
property prohibiting the transaction and if there are, ensures that the
interdicts are disposed of before registering such transaction.
- Endorses the relevant deeds or documents to give effect to the
registration of the transaction. For instance, if a mortgage bond is
registered against a property, the registrar must endorse the title deed
of the property to reflect that such a mortgage bond has been
registered, as well as endorsing the actual mortgage bond to reflect that
it has in fact been registered in the deeds office.
- Updating and maintaining deeds registry records of new registrations.
2. List and briefly discuss five aspects or facts for which the
conveyancer accepts responsibility by signing the preparation clause
of a deed. (5)
Regulation 44A provides that the preparer of the deeds is responsible to ensure
that:
- all copies of the deeds or documents are identical at date of lodgement.
- In the case of a deed of transfer or certificates of title to land, all the
applicable township and other conditions have been correctly brought
forward from the previous title deed.
- Where deeds and documents are being signed by an executor, trustee,
tutor, curator, liquidator or judicial manager, or by a person in any
other representative capacity, that form perusal of the documents
evidencing the appointment which have been exhibited to the
conveyancer, the signatory:
• has in fact been so appointed
• is acting within his/her powers and
• has furnished the necessary security to the Master of the Supreme
Court, if required.
- to the best of the knowledge and belief of the preparing conveyancer
and after due enquiry has been made, the names, identity number or
date of birth and marital status of any natural person who is a party to
the deed or document is correctly reflected in the deed or document;
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
Downloaded by Koketso Silas ()
, lOMoARcPSD|5059112
Critical Law Studies CC © 2
Conveyancing Questions – Semester 2 – 2018
and the names and registered number, if any, of any other (legal)
person or a trust are correctly reflected in that deed or document.
- Where deeds and documents are being signed on behalf of a company,
close corporation, church, association, society, trust or other body of
persons, or an institution,
- the signatory is in fact authorized, that is, proof that the signatory is
authorised by the board of directors or management to sign the
documentation, by way of a resolution
- the relevant transaction is authorized by and according to the
constitution, regulations, founding statement or trust instrument
- in the case of a deed of transfer, certificate of title or mortgage bond, the
particulars in the deed have been correctly brought forward from the
special power of attorney or relevant application.
3. Where land forms an asset in a joint estate, it is always necessary for
the surviving spouse to pass transfer of land together with the
executor in the estate of the deceased. Discuss this statement
critically. (5)
At first glance this statement appears to be correct. Land registered in the
names of parties married to each other in community of property, at the death of
one of the spouses, belong in undivided half shares respectively to the surviving
spouse and the deceased estate. Thus, like all co-owners, both the surviving
spouse and the representative of the deceased estate must transfer the land.
Note however the exceptions in terms of Section 21 of the Deeds Registries Act 47
of 1937, namely:
• where the executor is dealing only with the share of the deceased spouse;
• where the surviving spouse is the executor in the estate;
• where the land has been sold to pay debts of the joint estate;
• where there was a massing of the joint estate and the surviving spouse
adiated;
• where the property is being transferred to the surviving spouse
These exceptions deal with instances where the surviving spouses interests are
either not affected, or where he/she has already by implication consented in
writing to the transfer. Accordingly this statement is not completely correct.
4. Briefly explain what a mortgage bond is and list the requirements for
the registration of a valid mortgage bond. (5)
A mortgage bond is registered over land in order to secure an obligation of the
registered owner (the mortgagor) of that land, for example to repay money lent
to him by the person in whose favour the bond is registered (the mortgagee).
A mortgage bond therefore secures repayment of a debt, it encumbers
immovable property, and a written deed is registered in the deeds office.
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
Downloaded by Koketso Silas ()
, lOMoARcPSD|5059112
Critical Law Studies CC © 3
Conveyancing Questions – Semester 2 – 2018
The following items must be present for a mortgage bond to come into
existence:
1. There must be an agreement to create a debt or obligation, which
may not be contra bonos mores.
2. There must be immovable property that is capable of being
mortgaged.
3. There must be a deed (bond) calling the mortgage right into existence
(the mortgage bond that is to be registered in the deeds registry).
5. Differentiate between a positive and a negative deeds registration
system. Indicate which system applies in South Africa and
substantiate your choice. (10)
The characteristics of a positive deeds registration system are:
- The state guarantees that the state register is correct
- The state accepts liability for shortcomings in the state register
- The state examines deeds and documents before annotating the state
register
- The state completes and maintains the state register
- registration of title to land is linked to a cadastral system
- transfer of land is deemed to take place when the state register is
annotated
- linking of different transactions occur
- there is a high degree of state involvement in the land transfer process
The characteristics of a negative deeds registration system are:
- the state provides no guarantees
- the state incurs no liability for shortcomings in the state register
- the state simply records deeds on face value
- no checking of deeds by the state prior to recording
- transfer of the land takes place in the deed, not on recordal in the state
register
- the state register is not linked to a cadastral system
- third parties cannot rely on the accuracy of the state register
- parties typically guarantee their rights by private insurance policies
- there is minimal state involvement in the land registration process
The South African deeds registration system is nominally negative because the
state does not guarantee that the South African title register is correct or
accept unlimited liability. However it includes the following characteristics of a
positive system:
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is
strictly prohibited and constitutes a breach of copyright.
Downloaded by Koketso Silas ()
