Summary LPL 4804 Conveyancing notes.

UNIT 1 - OVERVIEW 1. Name and two types of land registration system. A positive system implies that:  The state guarantees bona fide third parties that the state register in the designated deeds registry is an authoritative record of the rights to clearly defined units of land.  The state examines/investigates documentation and transactions for legality.  The state completes and maintains a register of title  Register of title is linked to a cadastral (a system of records showing details of ownership) system of maps and diagrams.  Transfer takes place when the register of title is annotated and any deeds are merely endorsed.  From this it follows that new deeds are not necessary for each transaction as the main source of information is the deeds register which is merely annotated /updated.  Linking of different transactions occurs.  The state guarantees the accuracy of the deed register and is liable for shortcomings.  Such a deed register is characterized by a high degree of state interference. A negative system implies the following:  The state gives no guarantees to bona fide third parties regarding the accuracy of the state deeds register.  The state simply records deeds submitted at face value.  There is no examination of the deeds or investigation by the state prior to recording.  Transfer is effected in the new deed, not when the state deeds register is annotated/updated so a new deed must be executed for each transaction.  There is usually no link to a cadastral system of maps and diagrams.  Third parties cannot rely on the accuracy of the state records, which might give an inaccurate or incomplete picture.  The state incurs no liability for inaccurate or incomplete records.  Parties often guarantee their rights by taking out private insurance.  There is minimal state interference. 2. South Africa? South Africa is nominally negative but has some characteristics of a positive system as well. Positive:  State examines/investigates deeds  State completes and maintains register of title  State is linked to cadastral system of maps and diagrams.  Main source of information is the deeds register  Linking of transactions occurs  High level of state interference/intervention  State accepts liability in certain instances (sec. 99 provides that no act or omission by official in registrar’s office will render grn liable except if official acted mala fide or did not exercise reasonable care or diligence in execution of his duties) Negative:  Each transfer takes place in a new deed  State generally not liable – only in certain circumstance (sec. 99) SA does not guarantee the correctness of the data contained in the SA deeds registries, it does not simply record deeds at face value either – it provides owners/real right holders with security of title. Both titleholders and bona fide third parties rely on the correctness of the information contained in the title and deeds registry records. It is also unnecessary for South African titleholders to ensure their rights in case a third party should subsequently prove to have a better title to the property, as in the case of a negative registration system. 3. Legator McKenna Inc & Another v Shea & others 2010 (1) SA 35 SCA Following a m/v accident in which Ms. Shea suffered severe brain injuries making it impossible for her to manage her own legal and financial affairs, attorney McKenna of Legator McKenna Inc. Attorneys was appointed by the court as curator in March 2002. Then, before receiving a letter of appointment by the Master of the High Court, in April 2002, McKenna sold Ms. Shea’s immovable property to Mr and Mrs Erskine, in order to apy Ms. Shea’s pressing debts. With his signature McKenna inserted the words “curator” and “Subject to the approval of the Master of the High Court”. The Master’s appointment in favour of McKenna was issued in June 2002, and the Master’s consent to the sale to the sale followed on 17 July 2002. The transfer in favour of Mr and Mrs Erskine was registered on 27 July 2002 and in March 2003, Ms. Shea recovered spectacularly, to such an extent that the court declared her once more capable of managing her own affairs. Approximately a year later Ms. Shea applied to court for, among other things an order for the return of the immovable property against repayment of the purchase price. The Erskines in turn institutes a conditional damage claim against McKenna for R1,7m should the immovable property be returned to Ms. Shea, based on McKenna’s breach of the implied warranty that he was authorized to sell the property. In the court a quo Shea succeeded. The sale was declared void due to Mckenna’s lack of authority and since the causa of the sale was void, so was the subsequent registration of transfer in the deeds office. On appeal this decision was reversed and the abstract theory of the passing of ownership applied. It has thus now been definitely decided that the abstract theory of passing of ownership applies in South Africa. This means that even though the original causa of a transaction registered in the deeds office may be defective, if there is a real agreement to transfer ownership and both parties have performed under that real agreement, then the subsequent transfer is valid. UNIT 2 – THE CONVEYANCER 4. What does it take to be a conveyancer in SA?