Courtesy NGL Attorneys
The deeds office is a vastly complex and daunting system to master. It takes conveyancers years to fully understand not only the process of conveyancing but also the internal workings of the office. This is a brief overview of the process we as conveyancers follow when we arrive at lodgement and beyond.
Step 0: Instruction
Conveyancers, from time of receiving the instruction to time of lodgement are simply preparing everything that needs to be lodged in the Deeds Office. Rates clearance certificates, powers of Attorney, Transfer Duty receipts, correcting incorrect information and dealing with lost title deeds – all of these are requirements to lodge a matter and transfer a property in the Deeds Office. A lot of work goes into making sure every step is followed properly so that, when it comes to the deeds office, delays are minimized.
Step 1: Lodgement
Once everything is ready, the transfer documents are “Lodged”. Every component of a transfer has to be lodged at the same time. A simple cash transaction with no existing bond over the Property is the easiest – it is only one file handed in. If a bond is being registered over the property, the bond registration file is handed in simultaneously with a transfer file (we call these linked files “simuls” for obvious reasons). There are thus two files in one batch. If we have an existing bond over the property, we have to cancel it, and will lodge a bond cancellation file in that same batch. We can thus have batches of three files for an ordinary transaction (Transfer, Bond Registration, Bond Cancellation) and it is not uncommon for batches of tens of files for multiple linked transfers, bonds and bond cancellations.
Here is where a potential delay occurs. Each “simul” can be attended to by different Attorneys. Attorney A will do the Transfer, Attorney B will do the Bond Registration, and Attorney C will do the Bond Cancellation. If one of these Attorneys is not ready with their matter, it will delay the other Attorneys. Thus, dealing with a Conveyancer that is specialized in all three areas and has been instructed to attend to all three will speed up the process, as matters can be attended to internally rather than having to deal with other Attorneys via correspondence.
Lodgement entails simply handing the entire batch of documents in as one batch to the Lodgement Counter. This is done in the morning. A lodgement clerk will capture the days lodgements onto the Deeds Office Tracking System or DOTS so that the entire batch can be tracked on its journey through the many different parts of the Deeds Office. All these files can then be tracked with barcodes. The batches will then be divided up and randomly assigned to examiners – the next stage.
Distribution is where the batches are sent back to after every step. So, after lodgement, the batch moves to distribution, who then give it to Level 1, who gives it back to distribution, who gives it to Level 2, who gives it back to distribution, who gives it to level 3… etcetera. Thus, in this process, distribution is a “half step” between all of the below.
Distribution is unfortunately the source of many delays for the whole process. Distribution has a quota that stops them from processing more batches automatically to try and manage the whole pipeline.
Step 2: Junior Examiner (Level 1)
The files are then given to Junior examiners who then examine the entire batch with a fine-toothed comb looking for any errors or problems with the documents lodged. Examiners are unbelievably skilled at picking up the most minute of mistakes. If so, the examiner will then Reject the file, which in turn means the entire batch is rejected. Each examiner has their own office in the various floors where they sit and, quite literally, examine documents.
Due to COVID-19, examiners have been rotating to keep numbers of people in one building to a minimum and this has caused delays.
Step 3: Senior Examiner (Level 2
Once the junior examiner is done, the batch will move to a senior examiner who will cross-check the batch. Senior examiners are even more adept at finding mistakes.
Step 4: Assistant registrar (Level 3)
The final level of examination is that of an assistant registrar. These people are even more senior and experienced than the Juniors and Seniors. They also happen to be the people who sit in the execution hall once it is time to execute.
Step 5: Preparation or Prep
The batch is given back to the relevant Attorney who must then attend to any notes or queries raised. If there are no notes or queries then the batch is ready to be handed in for Execution. Examiners will leave “prep notes” which is a request by an examiner to change something or make small amendments that don’t warrant a rejection. For instance, a recent requirement is for all conveyancers listed on the Power of Attorney to have their Legal Practice Council numbers filled in. Since this is a relatively new requirement, the examiners will not reject a deed for not having it in, but will leave a prep note that requests them to fill it in.
Aside from prep notes, the Attorney must make sure they are ready to proceed. This usually means making sure all financials are in place and that there is no other reason to hold off on registering the matter. If every Attorney in the batch is ready to “proceed” then the batch is handed back in for execution. However, it can and does happen that one Attorney in the batch is not ready and can hold the others up.
Attorneys also do not have as much time as they would like to wait to hand in for execution – the Deeds Office will stamp a date onto that batch that reads “must be registered by” and this date will only be a few days after being handed back to the conveyancer. If we do not register by this day, the batch automatically rejects.
If something does however reject, it does not go to Prep but rather goes to the Attorney’s delivery box with a big “R” placed on it. It is up to the Attorney to pick up the rejections, take them back to the Firm, correct the reason the deed was rejected and re-lodge the batch. That means, if the batch is rejected, we start from square one.
There is a way to get a rejected deed back into the system as soon as it is rejected, but in Pretoria, the only time a registrar will grant corrective maintenance is when they, as the examiners/deeds office, has made a mistake and it is brought to their attention. For instance, if they were to reject a deed on the basis that the parties’ marital status was incorrect, but it was in fact correct on the documents, then we can ask for corrective maintenance.
Black Booking is the name given to a process that allows us as conveyancers to register a batch the exact same day we get it back from prep. We first have to have a very good reason to do it as permission must be granted by someone with authority to do so. The Deeds Office is extremely strict with granting permission so the procedure isn’t abused. Example reasons are the expiry of Rates Clearance Certificates the next day or, more recently, if a Deeds Office closure due to COVID-19 has caused you to miss your “Must Be Registered By” date.
The Deeds Office will not grant you Black Booking for reasons such as your Seller/Purchaser urgently needing to move out/in, financial emergencies or even if you are going to miss your “Must be registered by” date because another Conveyancer delayed you.
Step 6: Execution
Once handed in to execution, the deeds lie for one day and are then “thrown out” to be executed the next morning. They are actually placed, nice and gently, into the relevant execution box for the Firm instead of being actually thrown. Execution happens, usually, from the hours of 9:30AM to 11AM. The conveyancer will pick these up, take them to the Execution hall where they sit and face the Registrar and Assistant Registrars, where they will then sign the deed of transfer (execute). They hand these in for the Registrar or Assistants to countersign (register). Once the signature of the Registrar or assistants is affixed, by law, that Property has been transferred to the Purchasers and registration is complete.
Step 7: Admin work and Closing file
From this point on, Purchasers are legal owners of the Property and (in principle) can move in. Banks will be informed of the registration if there is a bond involved – the old Bond will be cancelled and the new bond registered. Banks will pay out monies due in terms of the Bond to the Attorneys. Attorneys will do final accounting and pay out the Sellers (as well as Estate Agent’s Commission).
Even though it would seem that we have done everything we need to, there is still some admin left for the deeds office.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)