SA Affordable Housing September / October 2020 | Page 24

LEGAL MATTERS
SPONSORED BY STBB
The conveyancer’s options when
the Deeds Office rejects deeds
for the wrong reason: Part 1
By Gert Minnaar
Whatever the public may have to say about civil servants, having worked as a
junior and senior examiner in the Pretoria Deeds Office from the middle 1980s for
four years, I can vouch for the fact that the Deeds Office is undoubtedly the civil
service office served by the most productive and committed civil servants in the
whole of our civil service with regard to the processing of designated workloads.
The reason for this is simply because each morning a junior
examiner must hand in 38 examined deeds before 9:00
and collect the next 38 for examination, while a senior
examiner has to turn around 59 deeds each day. These
examined deeds are then monitored by an Assistant-Registrar
of Deeds before it gets either passed for registration or thrown
out as rejected.
Aside from the resilience required to process this constant
daily workload or quota of allocated deeds, a sound technical
expertise and thorough knowledge of the law are essential to
ensure, firstly that deeds and documents which are passed for
registration comply with the Deeds Registries Act, 1937 (No.
47 of 1937) or any other law, and secondly that deeds or
documents which are rejected get rejected for the correct
reasons.
The amicable working relationship between the Deeds Office
officials and the conveyancing fraternity has always allowed for
issues to be resolved in a constructive manner. A contentious
issue such as the incorrect rejection of deeds or documents due
to the incorrect interpretation of the law can also be addressed in
the same manner if the necessary corrective measures are taken
immediately to make certain that not only the responsible
examiner but also all other examiners in that Deeds Office are
informed about the correct legal position which nullifies the
incorrect note. This will allow for prompt corrective maintenance
on this specific deed and straightaway stop all examiners from
continuing raising the incorrect note.
WHAT REMEDIES HAS A CONVEYANCER WHEN AN
EXAMINER AT THE DEEDS OFFICE REJECTS A DEED
FOR THE WRONG REASONS?
1. Interaction between conveyancers and the officials at the
Deeds Office
Conveyancers, unlike their colleagues in the litigation
department some may say, thrive on finding solutions instead
of on rivalry and adversity. This is demonstrated on a daily basis
when conveyancers engage with examiners at the Deeds Office
to resolve queries raised on deeds, with such engagement
resulting in either the compliance with and the removal of the
notes raised, or the attendance to the faults which require
correction by the conveyancer and the subsequent relodgement
of the rejected deeds.
A decent measure of goodwill exists between conveyancers
and the examiners and other officials at the Deeds Office
because of having to work so closely and regularly together.
This is a relationship which is further enhanced by the mutual
respect for and trust in the technical expertise of the
respective parties, and the preparedness of the examiners and
officials to interact with the conveyancers when their notes are
questioned.
However, occasionally, when a deed is rejected for the wrong
reason and the examiner refuses to concede on a mistaken
interpretation of the law this valued relationship is put to the
test. The consequence of such erroneously rejected deed or
deeds on a developer’s cash flow, especially in the affordable
housing market where the lodgement date of the deeds for a
turnkey house is determined by the anticipated transfer date,
which again is linked to the date the purchaser takes occupation
of his house, can be disastrous. That is apart from the fact that
the purchaser as end-user must deal with the fact that he can no
longer take occupation on the anticipated date which causes last
minute inconvenience and forces expensive alternative
measures to be taken like security costs for the empty
completed house by the developer and alternative
accommodation by the purchaser.
We will look at the implications for a set of deeds, consisting
of a transfer and a mortgage bond, where the examiner raised an
incorrect note regarding the interpretation of Sections 10A and
10B of the Housing Act, 1997 (No 107 of 1997) [‘Housing Act’]
with the transfer of a FLISP house to the purchaser as beneficiary
of a FLISP subsidy. The examiner requested a consent letter from
the Department of Human Settlements before allowing the
registration of the simultaneous mortgage bond which finances
the balance of the purchase price for the FLISP house.
22 SEPTEMBER - OCTOBER 2020 SAAffordHousing saaffordablehousingmag SA Affordable Housing www.saaffordablehousing.co.za