Conference Resolutions - Centre for Conveyancing Practice

More documents

Recommendations

Info

Paragraph 6.4 Section 40 endorsement Rates clearance certificate Question Must a rates clearance certificate be insisted upon when application is made in terms of section 40 of the Administration of Estates Act? Resolution No. In terms of the wording of section 118 of the Local Government Municipal Systems Act 32 of 2000 a rates clearance certificate must be insisted upon with the transfer of property. Section 40 does not constitute a transfer of property - (RCR39/2005). Termination of mortis causa trust before endorsement is effected Question 1) Where a mortis causa trust has terminated, prior to the endorsement in terms of section 40 being effected, can the land be transferred directly into the names of the beneficiaries, provided the causa of the transfer discloses the full facts? 2) Furthermore, may such beneficiaries enter into a redistribution agreement? Resolution 1) Yes. 2) Yes. See section 14(1)(b)(i) and RCR3/1954 as confirmed by RCR1/1969 - (RCR47/2008). Name of mortis causa trust Scenario Johan Marais is the testator and bequeaths property to the Mia Marais Testamentary Trust and Magdel Marais Testamentary Trust. Different properties are bequeathed to the two trusts. Transfer was effected into the names of the two trusts respectively by way of formal transfers, and not by means of section 40 of the Administration of Estates Act endorsement. The Master registered the trust as the Johan Marais Testamentary Trust (for the benefit of Mia and Magdel) and not as Mia Marais Testamentary Trust or the Magdel Marais Testamentary Trust. Question 1) In the event of the testator naming the testamentary trust (i.e. Mia Marais Testamentary Trust or the Magdel Marais Testamentary Trust), can the Master register a testamentary trust under a different name (i.e Johan Marais Testamentary Trust)? 2) How must transfer be effected? Is section 40 of the Administration of Estates Act preremptory or can a formal transfer take place? 3) If the Master has issued letters of authority in favour of the Johan Marais Trust can transfer of all the property take place to this trust? 4) Is a section 4(1)(b) amendment allowed to reflect the correct position? Resolution 1) Yes it can be registered. See CRC11/1995 2) Section 40 is preremptory. 3) No. The Master will differentiate between the two beneficiaries. 4) A section 4(1)(b) amendment is allowed to reflect the correct position - (RCR54/2008). February 2012 Self-Study Deeds Course 24
Title deed erroneously endorsed in terms of section 40 of Act 66 of 1965 Question Property was bequeathed in a will to an existing trust. The title deeds was erroneously endorsed in terms of section 40 of the Administration of Estates Act instead of the registration of a formal transfer to the trust. 23 How can this be rectified? Resolution The executor 24 in the estate must do a formal transfer, setting out the full details of the erroneous endorsement in terms of section 40, in the causa of the deed of transfer - (RCR52/2009). Paragraph 7.7 Restriction on minor’s interests - section 80 Waiver of preference of usufruct Question Must the provisions of section 80 of the Administration of Estates Act be complied with where a minor waives his/her preference of a usufruct in favour of the bond? Resolution Yes, this is tantamount to alienation of immovable property and the provisions of section 80 must be complied with - (RCR51/2006). Entering into a redistribution agreement by a minor Question According to a discussion with the Chief Master, the provisions of section 80 of the Administration of Estates Act are not applicable to redistribution agreements (entered into by a minor where immovable property belonging to such minor forms the subject of the distribution). 25 Should RCR 48 of 2008 and 11 of 2009 no be withdrawn? Resolution Section 80 of the Administration of Estates Act 66 of 1965 does not find application. RCR 48/2008 and 11/2009 are hereby withdrawn - (RCR30/2010). Master Notices Question Where there is a Master’s Notice (interdict) noted that a minor has an interest in property and such property is being transferred to any person other than the minor, how must the Master’s Notice be dealt with? Resolution If there is a section 42(2) certificate or consent by the Master, the deeds registry will purge the Master’s Notice with the understanding that the Master has taken notice of the interest of the minor – (RCR50/2011). Comment When a minor is an heir the master will give notice of this fact to the deeds registry in order to ensure protection of the minor’s interests. However, in some deeds offices, these notices are not received from the Master any more. Paragraph 8 Miscellaneous Section 18(3) of the Administration of Estates Act Question Can a representative appointed in terms of section 18(3) donate the property? Resolution No. There is no sanction for a representative to donate property in terms of the 23 Section 40 is only applicable in respect of a mortis causa trust and not an inter vivos trust as was the case here. 24 As section 40 is not a registration endorsement, the executor must transfer the property. 25 The part in italics has been inserted by writer hereof to make the question more clearly, in light of the previous question that was asked, the resolution to which question has been withdrawn. February 2012 Self-Study Deeds Course 25
Page 1 and 2: Registrars’ Conference Resolution
Page 3 and 4: accepted - (RCR39/2010). Chapter 4
Page 5 and 6: Resolution a) Proof from the Depart
Page 7 and 8: Item 8 Vesting of agricultural land
Page 9 and 10: Hunkydory Investments 188 (Pty) Ltd
Page 11 and 12: Question Is there an onus on the re
Page 13 and 14: cases or is it not his/her responsi
Page 15 and 16: Regulation 65: Use of Copies of Gen
Page 17 and 18: Lapsing of personal servitude by me
Page 19 and 20: liquidation and distribution accoun
Page 21 and 22: Resolution The original affidavit o
Page 23: marriage may be accepted as proof.
Page 27 and 28: Interpretation of the Provisions of
Page 29 and 30: Paragraph 8 Certificate of consolid
Page 31 and 32: of an existing unit of land? Resolu
Page 33 and 34: Deeds Registries Act. Is it correct
Page 35 and 36: Question Is it necessary to automat
Page 37 and 38: Section 92: Transfer by endorsement
Page 39 and 40: 107 of 1997 must be cancelled by se
Page 41 and 42: RCR 38 of 2008: Lost notarial deed
Page 43 and 44: consent when mortgaging land where
Page 45 and 46: Question T1/1999 is registered in t
Page 47 and 48: Question Can the trustee of an inso
Page 49 and 50: also be used? Resolution CRC 18 of
Page 51 and 52: Land Claim Caveat and Bonds Questio
Page 53 and 54: General. Section 14(3): Amendment o
Page 55 and 56: 95 of 1986 only requires that the c
Page 57 and 58: provision is made for the consent o
Page 59 and 60: a) Yes. b) Yes. c) Yes - (RCR64/201
Page 61 and 62: c) No, it must be filed in the nota
Page 63 and 64: Resolution A caveat must be noted a
Page 65 and 66: Question In view of the unreported
Page 67 and 68: Resolution Pending an amendment to
Page 69 and 70: Paragraph 14 Creation of servitudes
Page 71 and 72: Names allocated to sectional title
Page 73 and 74: encroachment over an existing servi
Page 75 and 76:
___________________________________
Page 77:
Compiled by Erinda Frantzen BCom(La
show all

Conference Resolutions - Centre for Conveyancing Practice

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?