LPL 4804 Conveyancing Summary notes. Best for Exam prep.

TYPES OF LAND REGISTRATION SYSTEMS ensure you distinguish between types of land registration systems (negative and positive) and South Africa’s negative and positive qualities Negative land registration systems Positive land registration systems Ø State does not guarantee accuracy of register – third parties often obtain pvt insurance Ø State incurs no liability for inaccurate or incomplete records Ø No examination of deeds by the State - State simply records deeds at face value Ø Transfer is effected in the new deed, Ø A new deed is required for each transaction Ø Usually no link to a cadastral system of maps and diagrams Ø Minimal state interference Ø State completes and maintains a register of title and guarantees accuracy and correctness of register Ø State is liable for shortcomings in records Ø State examines/investigates documents and transactions for legality Ø Transfer takes place when the register of title is annotated and deeds are merely endorsed Ø New deeds not required for each transaction Ø cadastral systems of maps and diagrams Ø High degree of state interference Ø Linking of transactions occurs Land registration in SA (SA system): is based mainly on legislation and is nominally negative, but has some characteristics of a positive system. Positive characteristics of the SA land registration system Ø State investigates and examines deeds before annotating the register. Ø State accepts liability for shortcomings in specific, limited circumstances Ø State completes and maintains a register of title Ø Linked to a cadastral system of maps and diagrams Ø Linking of transactions occurs Ø High degree of state interference Ø State does not record deeds at face value Ø State provides owners with security of title Negative characteristics of the SA land registration system Ø State does not guarantee correctness of data or accuracy of the register, BUT parties do rely on the correctness of information. Ø Transfer is effected in the new deed and a new deed must be executed for each transaction Ø State incurs no liability for inaccurate records - If there are defects in title, a party may claim delictual or contractual remedies against the Conveyancer, however the State is only liable for damages in terms of section 99 DRA, if it can be proved that: a) the loss resulted from an act/omission of a registrar or an official employed in a registry; and b) it was committed in bad faith or as a result of a failure to exercise reasonable care and diligence. Critical Law Studies CC © Conveyancing Summary – Semester 2 – 2018 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. 2 When will the SA register not reflect the true registered owner? 1. Where land is expropriated. 2. Where ownership in land is acquired by prescription. 3. Where there is a marriage in community of property. Although the State does not guarantee the correctness of the Deeds Registry records, it does provide security of title and it is not necessary for parties to take out private insurance - titleholders and third parties do rely on the correctness BUT are third parties who rely bona fide on the Deeds Office records protected? Eg where land is transferred and the bond in not cancelled. View 1: NO - the Transferee acquires the land subject to the bond. (Barclays National Bank Bpk) View 2: YES - land title automatically includes a tacit guarantee of indisputable title. Supreme Court of Appeal - Legator McKenna Inc: provides authority for the fact that even if the original cause of a transaction, which is registered in the Deeds Office, is defective, if there is a real agreement to transfer ownership and both parties have performed in terms of that agreement, then the transfer is valid. This is known as the abstract theory of passing ownership.