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HOA Consents

29 November 2007

The question as to which consents must be prepared by an attorney or a conveyancer or a notary is not a settled issue in the deeds registries and is, indeed, quite complex. This article will explain the issue and suggest the manner in which this topic ought to be dealt with.

Regulation 44(1) prescribes that all consents required for the performance of an act of registration in a Deeds Registry, except where a Registrar has waived compliance therewith in terms of Regulation 44(3), must be prepared by an attorney or a conveyancer or a notary. Regulation 44(3) compounds the problem by granting the Registrar the discretion to waive compliance with Regulation 44(1) in respect of those consents not provided for in the Act or the regulations. This then means that a consent not provided for in the Act or the regulations must, unless the Registrar has waived compliance with Regulation 44(1), be prepared by an attorney or a conveyancer or a notary.

From the manner in which Regulation 44 is worded, a reasonable inference, i.e., that all consents provided for in the Act or the regulations must be prepared by an attorney or a conveyancer or a notary, can be drawn. However, I take the view that only those consents that are referred to in the Act and the regulations need to be prepared by an attorney or a conveyancer or a notary, except of course the consent of the Master or the consent of the Minister of Public Works. In this regard, it is obvious that it is absurd to expect those consents to be prepared by the above-mentioned officers. In other words, I do not support the discretion afforded to the Registrar by Regulation 44(3), in so far as it relates to consents not provided for in the Act or the regulations, as it complicates this issue. For example, how realistic is it to expect a consent to subdivision by the Minister of Agriculture or a Local Authority to be prepared by an attorney or a conveyancer or a notary?

A consent by a home owners' association (HOA) is definitely not a consent provided for in the Act or the regulations and falls squarely within the ambit of Regulation 44(3). The question then is: How should the registrar exercise the discretion conferred in Regulation 44(3)? I take the view that expecting an attorney or a conveyancer or a notary to prepare a consent by an HOA stretches the responsibilities of those officials too far, and that ought not to be encouraged.

I humbly submit that the rule should be to determine whether the consent concerned is provided for in the Act or the regulations or not. If provided for, then it must be prepared by the officers referred to above and, if not, then such consent need not be prepared by such officers. It should be noted that this proposition discards the discretion contained in Regulation 44(3).

George Tsotetsi
Office of the Chief Registrar of Deeds

Republished with permission from SA Deeds Journal

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