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Home Articles The values of a conveyancer and a reliable land register system to the Namibian economy in general

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The values of a conveyancer and a reliable land register system to the Namibian economy in general

In Namibia our system is based on the best and most secure systems for property registration and ownership in the developed world. On receipt of a signed and accepted Offer to Purchase the property can be transferred, and once transferred and registered the owner has an unassailable right to the property that cannot be overturned by anyone.

This compares well with other countries, where a property can be lost to a better offer before registration and buyers need to take out title insurance to protect their rights of ownership. Indeed our land registration system and all that it is built upon forms a fundamental part of the total judicial infrastructure on which our country’s economy is based. If anarchy escalates here to such an extent that a judgment creditor can no longer retrieve its outstanding debt on a property by way of public auction, then the whole judicial and economical system becomes meaningless.
Information kept in our registers enables potential land purchasers or credit providers to decide whether they wish to proceed with such transactions or not. Great care is taken to ensure the accuracy of our registers. In its present form, the Deeds Registries Act places a great deal of responsibility on conveyancers to maintain the land registration system. On the other hand, our system also relies a great deal on the professionalism of deeds examiners employed by the State to ensure the integrity of the registers.

 

In reality, the office of the registrar of deeds forms a vital piece of economic infrastructure. Without it our modern free market system would hardly function or function with great difficulty, as has been shown in many Third World Countries; the lack of a proper land register stifles economic development.


As an everlasting asset, land is 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 institutionalised money lenders be prepared to provide credit on the strength of a real right (mortgage) against the debtor's land. This is the basis upon which the whole modern banking system is built. If all land in a country belongs to the State, then banks are largely restricted to providing loans to the different organs of State or merely providing short-term loans, even if individual property rights on land are acknowledged without a credible system which proves the lender’s legal right. So for example, in some parts of the developing world, no bank will provide significant credit to a subsistence farmer. This however is not the case in Namibia.


Indeed, one should not underestimate the value to the economy of a reliable land register in Namibia. Besides conveyancers, land surveyors and government employees, a great deal of responsibility is also placed on the Namibian public (including estate agents) to prevent anarchy by respecting the land register system to the benefit of the industry and economy.
Land Registration and conveyancing is the pivot around which our economic and judicial system spins and is not a simple process. Having read this you will realise that property transfer is a complex field of our law and requires extensive knowledge, skill and attention to detail on the part of the conveyancer.

 

The Conveyancer
The actual processing of transfer (shift of ownership) includes registration in the Deeds Registry which is performed by a conveyancer. A conveyancer is a practicing legal practitioner (admitted by the High Court of Namibia), who has passed a specialised conveyancing examination to practice as conveyancer in Namibia. To lodge a deed for execution before the Registrar, the conveyancer must be in possession of the required certificate issued by the Board for Legal Education. A newly qualified conveyancer must exhibit this certificate to the Registrar before appearing before such registrar or before lodging any documents prepared by him/her at the Registry. The Registrar is required to keep a register of practicing conveyancers at his/her office.

The Deeds Registries Act stipulates that the Registrar of Deeds shall not attest, execute or register any deed or document unless it has been prepared by a conveyancer or a notary public. According to section 20 of the Act, only a conveyancer may be given the Power of Attorney by the owner of land to execute deeds before the Registrar on the owner’s behalf. The responsibility of all conveyancing matters, including the supervision of the registration of all transactions, lies with the conveyancer. It is also the conveyancer’s duty to establish and to verify facts in documents drafted by him/her. Verify means to check and confirm that the information is really true and the law holds the conveyancer personally accountable for the correctness of certain facts and particulars relating to the specifics of the particular conveyancing transaction. Conveyancing requires not only attention to detail and great accuracy, but also knowledge of the law and good drafting skills.


Role and function of Conveyancer in the transfer/sale of immovable property
The most important role of the conveyancer in general is to uphold the land registration system in Namibia together with the various role players. The conveyancer also takes ultimate responsibility for the handling of conveyancing matters. This would include the following important responsibilities for a general transfer file:
• Secure the purchase price – cash deposits or guarantees;
• organise payment/settlement of the seller’s bond from the available funds from the purchase price;
• handle occupational interest;
• ensure payments regarding duties and taxes to the government are made;
• pay the seller’s outstanding rates and taxes to the local authority;
• ensure that all parties keep their promises in terms of the sales agreement;
• draft the new deed of transfer and supplementary documents;
• keep all parties informed;
• ensure that the property is transferred from the seller to the purchaser for the right price at the correct time; and
• pay the purchase price to the seller and pay the agent’s commission.

 

Appointing a Conveyancer

The right to nominate a conveyancer is vested in terms of the contract. Where the contract is silent on this point, the right to nominate a conveyancer is governed by common law. The position at common law appears to be that the right is vested with the seller. Most contracts of sale also stipulate that the transfer of land to the purchaser will be attended by the seller’s conveyancer.

When appointing a conveyancer the following criteria should be kept in mind:

  • Capability of handling the specific instruction;
  • up-to-date knowledge of Namibian conveyancing law and practice;
  • good communication with clients and other stakeholders;
  • organisation and admin skills; and
  • the capability of balancing accuracy and speed.

 

The Conveyancer's responsibility to protect the interest of the Buyer AND Seller

Uncertainty sometimes prevailed as to whether the conveyancer, appointed by the seller to effect transfer of the property, has any duty to safeguard the interest of the purchaser. According to our common law there rest an onus on conveyancers to ensure that the purchaser's rights are protected in the conveyancing process. Conveyancers therefore have a legal responsibility in accordance with the professional code of conduct which the community at large expect from persons holding such capacity, to protect their interest. Therefore the negligent omission on the part of a conveyancer to protect the interest of a purchaser is unjust.