Introduction to Special Transfers

After several weeks of study of a standard deed of transfer and its supporting documents, we will now run through some of the common variations to such a deed. We will consider variations required for:

Partition of land; Administration of the estate of a deceased person Transfer following seizure and sale of the property to satisfy a debt

Partition transfers must be preceded by discussion of key informing concepts such as a share, and rules in the DRA relating to possibilities of joint ownership and multiple transfers.

The Concept of a Share

The concept of joint ownership in property law requires that there must be dealings with a share in conveyancing. Marriage in community of property and partnership, as seen earlier in this course, result in joint ownership and shareholding over land. S. 2 of the DRA states that a share, in relation to land, means undivided share. Reg 13 reinforces this understanding. It states that in the description of land the term shall be employed when an undivided share is being dealt with, and such share shall be expressed in one fraction in its lowest terms. Thus, if a husband married in COP bequeaths his share in a matrimonial home to his wife and daughter; the wife has a share by virtue of marriage in COP, and a in terms of the husbands will. This must be expressed in the lowest fraction as a share in the property.

An Undivided Share

An undivided share is one that does not relate to a specific portion of the property or, in the case of a joint estate, a specific proportion of the estate. A share in conveyancing is an interest in the whole property or the entire estate. It is an interest in an indivisible whole. S. 24 (1) states that no transfer of an undivided share in land which is intended or calculated to represent or purports to represent a defined portion of the land shall be capable of being registered. If a share must represent a defined portion of the land, or a specified proportion of the estate, the land or the estate must be partitioned. Partition involves termination of joint ownership and translation of an undivided share into sole ownership a defined portion.

Multiple Transferors

The concept of an undivided share suggests that we must contemplate having two or more parties to a deed, either as transferors or as transferees. On multiple transferors, S. 22 (1) states that two or more persons each owning a different piece of land may not transfer those pieces to one or more persons by means of one deed, unless the law or a court order so authorises. The preferred position in conveyancing is one transferor, one piece of land and one transferee. At the same time, S. 23 (2) indicates that land held by two or more persons in undivided shares may be transferred by one deed to one person, or to two or more persons in undivided shares.

Multiple Transferees

S. 23 (1) states that land held by one person may be

transferred by one deed to two or more other persons in undivided shares. It is good practice to indicate the sizes of undivided shares in transfer documents. If the sizes are not indicated, the presumption may be that that transferees receive equal undivided share. The vesting clause of a deed of transfer could reflect transferees in undivided shares as in the following slide.

Multiple Transferees in a Vesting Clause

And the appearer in his capacity as aforesaid did by these presents cede and transfer in full and free property to and on behalf of
1

Mmapula Moloi (born Sedumedi, on 22 March 1966) Widow, 2/3 (Two Thirds) share Tebogo Moloi (born on 31st December 1991) Unmarried, 1/6 (One Sixth) share Thato Moloi (born on 16th June 1994) Unmarried, 1/6 (One Sixth Share Their heirs, executors, administrators or assigns, the following property, that is to say:

Two or More Pieces of Land

S. 22 (1) prohibiting use of one deed of transfer by two or more persons holding different pieces of land in effect also restricts conveyance of several properties in one deed. S. 22 (2), however clarifies that this restriction only relates to two or more unrelated transferors. It clarifies that one person may transfer two or more properties by deed to one person or to joint owners, and joint owners too may transfer two or more properties in one deed to one person or to other joint owners. S. 22 (3) indicates that where more that one property is conveyed in one deed, each property must be described in a separate paragraph of the deed. The conveyance of two or more properties in one deed should be feasible if the properties were surveyed at the same time, have one diagram deed, and have uniform conditions of tenure. See the example of Lots 2453 and 2454, Selibe Phikwe Extension 5, attached to these notes.