THE VITAL ROLE OF THE CONVEYANCER IN THE NAMIBIAN LAND REGISTRATION SYSTEM
1. The Namibian property system is founded on a well-established and secure system of property registration and ownership. The process is initiated by way of a signed and accepted Deed of Sale of land as required by the Formalities in Respect of Contracts of Sale of Land Act 1969, which stipulates that no agreement of sale of land will be valid unless reduced to writing and signed by both parties. The process is then regulated in terms of the Deeds Registries Act and various related statutes which have specific bearing on certain topics.
2. Once the property is transferred and registered, the owner acquires a real right to immovable property which can be regarded as indisputable title. This is further entrenched by Constitutional rights protecting such property ownership.
3. Beside the unassailable rights of a registered owner as emanates from registration in the Deeds Registry, the accuracy of the records kept at the Deeds Registry enable purchasers or financial institutions to decide whether they wish to proceed with or finance transactions.
4. The continued accurate registration and documentation of all rights in land and access thereto by prospective property owners, financial institutions and other role-players in the commercial setting, remains a pivotal pillar of Namibia’s economic infrastructure.
5. Conveyancers currently play a pivotal role in delivering titles to land and are responsible for the security of such title and the correctness thereof. By eliminating the role of the Conveyancer, the land registration system will be cluttered with fraud and bribery and with no level of security of title.
DEFINING A CONVEYANCER
A conveyancer is an attorney who is qualified and authorized to prepare and execute documents in the Deeds Office. He/she is also personally responsible for ensuring that the terms, obligations, and finances relating to the transaction are strictly adhered to. It is the conveyancer's duty to attend to these details and can be held personally responsible in the event of a faulty transfer.
THE PROPERTY TRANSFER PROCESS IS SET IN MOTION UPON SIGNATURE OF AN AGREEMENT OF SALE BETWEEN A SELLER AND PURCHASER:
STEPS TO BE TAKEN BY THE CONVEYANCER
A conveyancer conducts a search in the Deeds Office in Windhoek or Rehoboth to obtain the correct description of the registered owner and the property, as well as any restrictive conditions or servitudes attached thereto.
DRAFTING OF DOCUMENTS
A conveyancer collects required documentation and drafts transfer documents. These documents include a power of attorney to transfer, transfer duty application form, transfer duty declarations for both seller and purchaser, Insolvency affidavits for all parties, Financial Intelligence Act information sheets, as well as a statement of transfer cost with provisions for (i) stamp duties and (ii) transfer duties. Conveyancing fees are calculated according to a tariff determined by the Government of Namibia. These fees are prescribed in a Government gazette and cannot be adjusted by specific law firms or conveyancers.
The Conveyancer therefor acts as a Tax Collector for the Receiver of Revenue and the Local Authorities.
CANCELLATION OF BONDS
Assuming that there is a bond registered over the property, it is the conveyancer’s duty to have the bond cancelled before registration of transfer of a property to the new owner. This ensures that the new owner buys a property without any existing debt.
FINANCING OF THE TRANSACTION
It is the Conveyancer’s duty to oversee the finances of a transaction. In most cases, the purchaser will have applied for a bond to finance the property. The conveyancer will request the necessary undertakings from the purchaser’s bank and will ensure that guarantees are issued to pay the purchase price. The Conveyancer therefor creates a stable and reliable framework within which the sale of property can take place.
LODGEMENT & REGISTRATION
It is also the duty of the Conveyancer to draft a new title deed and to have the current bond cancelled and to ensure the new bond is registered simultaneously. The Conveyancer also requests pre-payment of Municipal Rates & Taxes and oversees the payment thereof to the Municipality.
FINAL ACCOUNT AND PAYMENTS
The conveyancer also takes responsibility for the payment of the proceeds to the seller as well as payment of the estate agent's commission, if any.
DELIVERY OF TITLE DEED
In the event of the property being bonded, the Conveyancer also delivers the original title deed and bond to the financial institution for security and in case of a cash transaction, the original title deed will be delivered to the new owner.
The Conveyancer’s meticulous focus and adherence to accuracy and legal certainty may soon be eliminated from the transfer process in the event of the new Deeds Registries Act becoming enforceable. The Act envisages registered owners being able to personally attend to their own transfer, which is a potentially alarming prospect for the continued securitization of the Namibian economy by creditors and financial institutions and will furthermore require new owners to take out insurance to guard against the risk of an incorrect title deed. Errors in registration are costly to rectify.
Dr Weder. Kauta & Hoveka Inc.