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Property Registration in SA
A credible property register ensures that almost each piece of land can be identified. This provides not only the creation of a register of who owns a piece of land or has rights thereto, but also provides this information for public knowledge.
South Africa inherited one of its most significant strategic advantages from the Roman Dutch law.
During the late Roman times the transfer of land took place by physically handing over a document in which the seller confirmed that he transfers the land to the buyer. This event was not accompanied by public notification. This in essence is still the situation in England today with their "conveyance by deed". This complicates matters to outsiders who wish to know who the owner of a specific piece of land is.
In other parts of Europe things developed differently during the middle ages. The transfer of land had to take place in public, usually in the presence of family or neighbours. This developed into a practice where this function was performed in the presence of the local judicial official who had to keep a copy of the transfer deed in his office.
This finally gave rise to legislation enacted between 1529 and 1580 by the then Austrian-Spanish rulers who also ruled the Lower Lands of Holland. Accordingly, all transfers of land and rights thereto (such as a mortgage or servitude) had to be registered in the local court.
This practice was brought to the Cape.
Simultaneously with the establishment of a separate Council of Justice ('Raad van Justisie') in 1680, all land transfers were registered there. The Roman-Dutch principles upon which this office functioned remained, and indeed still do so to this day.
Property Deeds Registration forms a vital piece of economic infrastructure. Without it our modern free market system would hardly function or function with great difficulty. The lack of a proper land register stifles economic development.
As an immovable asset, land forms the most obvious security one has to offer for the repayment of a loan. However, this presupposes that the particular piece of land may be clearly identifiable.
Only then will individual or institutionalized money lenders be prepared to provide credit (mortgage bond) on the strength of a real right against the debtor's land. This is the basis upon which the banks provide loans with property as security.
South African Deeds Registries are government offices where information relating to land are readily provided for public access.
Information kept there enables potential land purchasers or credit providers to decide whether they wish to proceed with such transactions or not.
In certain Western European countries a so-called positive registration system is employed, which means that information recorded may be fully relied upon. By implication this means that the relevant State will guarantee the accuracy of the information contained in its land registers. In South Africa, the system however is negative. The information contained in deeds registers create a strong presumption, but total reliability cannot be guaranteed. Great care is taken to ensure the accuracy of our registers.
A conveyancers is a specialized attorneys who deal with land transfers and the rights thereto. The current Laws governing property registration places a great deal of responsibility on conveyancers. Obviously the professionalism of deeds examiners (employed by the State to ensure the integrity of the registers) is vital.
A sound land registration system forms an important part of the judicial infrastructure on which an economy is based.
(extract of Sake24 article).
Article From: www.ikonic.co.za