CONVEYANCING EXAM MEMOS FROM 2018 to 2020 – LPL4804
,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;
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.
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:
- the state accepts liability for shortcomings in specific, limited circumstances
- the state examines deeds and documents before annotating the state register
- the state completes and maintains a land register
- the state register is linked to a cadastral system
- linking of different transactions and deeds take place (for financial reasons)
- there is a high degree of state involvement in the registration process
6. Discuss the duties, powers of liability of the Registrar of Deeds in South
African law. (10)
Section 4 of the Deeds Registries Act 47 of 1937 The
duties of the Registrar of Deeds, are to:
- Take charge and preserve all records;
- Examine all deeds (checking compliance with legal provisions, interdicts,
endorsements and updating deeds registry records);
- Record interdicts;
- Keep registers updated; - Give access to public.
The powers of registrar authorizes him to:
- require production of proof
- rectify registered deeds in terms of section 4(1)(b)
,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;
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.
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:
- the state accepts liability for shortcomings in specific, limited circumstances
- the state examines deeds and documents before annotating the state register
- the state completes and maintains a land register
- the state register is linked to a cadastral system
- linking of different transactions and deeds take place (for financial reasons)
- there is a high degree of state involvement in the registration process
6. Discuss the duties, powers of liability of the Registrar of Deeds in South
African law. (10)
Section 4 of the Deeds Registries Act 47 of 1937 The
duties of the Registrar of Deeds, are to:
- Take charge and preserve all records;
- Examine all deeds (checking compliance with legal provisions, interdicts,
endorsements and updating deeds registry records);
- Record interdicts;
- Keep registers updated; - Give access to public.
The powers of registrar authorizes him to:
- require production of proof
- rectify registered deeds in terms of section 4(1)(b)
