LEGAL MATTERS
SPONSORED BY STBB
The conveyancer ’ s options when the Deeds Office rejects deeds for the wrong reason : Part 2
By Gert Minnaar
What remedies has a conveyancer when an examiner at the Deeds Office rejects a deed for the wrong reasons ? The first part of this article appeared in the September issue of SA Affordable Housing , including points 1-3 . They must be read in conjunction .
4 . The conveyancer ’ s response to the incorrect note The incorrect note raised by the examiner which prevented the above transfer and bond ( see May issue , Part 1 ) for the FLISP house under discussion from getting registered the first time read as follows : “ Taking out a bond is the first step to alienation , lodge consent .”
It seems that this specific examiner was under the impression that Section 10A of the Housing Act , 1997 ( No 107 of 1997 ) was applicable already in respect of the very mortgage bond without which the acquisition of this FLISP house would not be possible . The correct position is that Sections 10A and 10B of the Housing Act , 1997 ( No 107 of 1997 ) only find application after both the transfer and required bond for the FLISP house are registered simultaneously , as indicated in Regulation 63 ( 3 ) and Section 13 ( 3 ) of the Deeds Registries Act , 1937 ( No 47 of 1937 ):
• Regulation 63 ( 3 ) When a deed lodged for execution or registration is intended to be executed or registered , or otherwise dealt with , in conjunction with any other deed lodged , the conveyancer , notary or Government official responsible for the lodgement shall indicate in the manner approved by the Registrar that such deeds shall be executed or registered or dealt with simultaneously . If any conveyancer , notary or Government official omits to comply with this regulation , the deed in respect of which the omission was made may , if in order , be executed , registered , or otherwise dealt with independently of such other deed .
• Section 13 ( 3 ) All endorsements or entries made on deeds , documents or powers of attorney or in registers , in connection with the registration of any deed , document or power of attorney , shall be deemed to have been effected simultaneously with the affixing of the signature of the registrar thereto in respect of deeds executed or attested by a registrar or with the signing of his registration endorsement in respect of deeds , documents or powers of attorney lodged for registration , although in fact they may have been made subsequent thereto .
Only once this purchaser who obtained a FLISP subsidy and mortgage loan , after date of transfer and registration of the simultaneous mortgage bond , wishes to sell this property within a period of eight years from date of acquisition will he or she be required to first offer it to the relevant Department of Human Settlement in case of a voluntarily sale . The request by the examiner for a consent from the Department of Human Settlements to register the linked mortgage bond is thus premature because the restrictions in Sections 10A and 10B of the Housing Act , 1997 ( No 107 of 1997 ) only become applicable after signature of this mortgage bond by the Registrar of Deeds and its simultaneous registration with the transfer of the FLISP house .
Despite these sound arguments in law by the conveyancers this examiner was not prepared to remove this incorrect note . The matter was escalated to the Deputy Registrar of Deeds and only when the NHFC was approached to issue a letter to the Deeds Office confirming the correct application of Sections 10A and 10B of the Housing Act , 1997 ( No 107 of 1997 ) was this note removed , albeit reluctantly because it was requested that a copy of the NHFC letter be lodged with each following FLISP transaction , despite it not being a consent but a mere written confirmation of the correct legal position .
This saga started on 2 August 2019 and it took all of three weeks to get this note removed to get the transfer and bond registered . The developer was dumbfounded but mightily relieved that the same note was not raised on his other FLISP transactions by the other examiners in the same Deeds Office during this time .
5 . What remedies are available when an examiner refuses to remove an incorrect note ? One of the duties of the Registrar of Deeds is described in Section 3 ( 1 )( b ) of the Deeds Registries Act , 1937 ( No 47 of 1937 ), and that is to examine all deeds or other documents to check that it complies with the provisions of the Deeds Registries Act , 1937 ( No 47 of 1937 ), or of any other law :
The registrar shall , subject to the provisions of this Act -3 ( 1 ) ( b ) examine all deeds or other documents submitted to him for execution or registration , and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act or by any other law , or to the execution or registration of which any other valid objection exists ; Provided that such deed or document need not be examined in its entirety before being rejected ;
20 NOVEMBER - DECEMBER 2020 SAAffordHousing saaffordablehousingmag SA Affordable Housing www . saaffordablehousing . co . za