Deed of Transfer
This is the instrument by which ownership of land must be conveyed from one person to another. It is not the only means of conveying ownership. Alternatives in the Act include transfers by means of endorsements, (Ss. 19, 43 and 44) or through execution of orders of a court or a commission, (s. 31). Alternatives outside the Act include transfers by operation of law, for example in terms of S. 3 of the Prescriptions Act, or S. 17 of the Insolvency Act.
Parts of a deed (1)
Deeds Registry Examination Guidelines p. 3) identify at least 11 parts that examiners will pay attention to. For study purposes, we can identify at least 13 parts. These include:
A blank upper half. Reg. 4 (7) Preparation endorsement. Reg. 26 Heading Preamble. This begins with the standard salutation in deeds. It also refers to the authority of the appearer, if the owner has not appeared in person. It may for this reason also be referred to as the appearance clause. The appearer can only be a conveyancer. S. 20. The Recital identifies the causa. The recital is easy to draft if the causa is a sale. It is complex and convoluted for other causae. It must be crisply indicated how and why the transferee is entitled to receive transfer.
Parts of a deed (2)
After the recital comes the vesting clause. Full particulars of the transferee, including names, date of birth, marital status, proprietary regime and full particulars spouse must be indicated for natural persons. The description must end with his heirs, executors, administrators or assigns for natural persons, and its successors in title or assigns for companies and other artificial persons. Property clause. This follows the vesting clause. The framing of the clause and description of the property must comply with Regs. 9, 11, 12. Conditional clauses follow the description of the property. They must be framed in reference to Reg. 18.
Parts of a deed (3)
After the conditional clauses, the divesting or renunciation clause must be inserted. The function of this clause is to renounce the title of the transferor, and to affirm the vesting of title in the transferee. As in the vesting clause, therefore, the particulars of the parties must be accurately reflected. Confirmation of the vesting of title in the transferee is also accompanied by confirmation of reservation of the rights of the State. Although rights of the state must be reflected in specific conditions (Reg. 18 (1) (d), a general clause in this part of the deed will cover for inadvertent omissions in the specific conditions.
Parts of a deed (4)
The consideration clause follows confirmation of the vesting of title in the transferee. Where the causa is a sale, the transferee acknowledges to have been satisfactorily paid the consideration. Where the causa is not a sale, or where monetary consideration is not payable, the clause might acknowledge the value of the property. This is relevant for transfer duty purposes. In the power of attorney, the price or consideration will be indicated in the part where the causa is declared. Because of the consideration clause, the recital of a deed of transfer does not refer to the price or consideration.
Parts of a deed (5)
Execution and attestation clauses. These must comply with both Ss 17 and 20 of the DRA. In most deeds the conveyancers signature will be accompanied by the words q.q his principal to signify that he has signed in a representative capacity. S. 17 suggests that execution must literally be in the presence of the Registrar. This may not always be feasible in practice. After attestation, some deeds indicate the register in which the property is registered. Eg. Registered in the Register of Lots at Gaborone. The last part of a deed of transfer is a separate page for endorsements, deductions and additions.
Prescribed forms
Deeds and other documents must generally be prepared using prescribed forms, and formatted in the manner prescribed by regulations. (S. 20 & Reg. 54) S. 11 (1) (c) gives the President the power to make regulations prescribing the form and manner in which deeds and other documents may be prepared, lodged, executed, registered filed or delivered. Regs at the back of the deeds registry Act suggest that the Registrar has ultimate control over these matters. The regs are probably adequately on formatting and other issues, but not enough prescribed forms are provided. Deeds Registry Guidelines and Sectional Title Regulations, however, should not be so criticized.
Formatting (1)
Deeds etc must be written, printed on type on paper approved by the Registrar. (Reg. 3) This must be done neatly and plainly, with black ink of good quality, allowing for a margin of 37, 5 mm. (Reg. 4 (1). No carbon ink or copies must be used. These requirements obviously enhance legibility and also ensure durability and preservation of records for a long time. (Reg. 6) Alterations and interlineations may render a document liable to rejection. They must also be initialed by the persons executing and attesting the deed or document. (Regs 4 (3) and (6).
Formatting (2)
A notary must also initial alterations and interlineations in notarial documents. No signature must be written across a stamp, or encroach upon the margins, and it must be in black ink of good quality. (Reg 4 (5) Blank spaces not used must be ruled through. A deed going beyond one page must have catch words at the foot of the page.(Reg. 5) The upper half of the first page of deeds must be left blank for deeds registry endorsements. Clearly, there is no room for careless work in conveyancing. Drafting exercises will therefore be strictly assessed.
