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VOLUME: V
SECTIONAL TITLES
CHAPTER: 33:04
Part:IV Registration and Common Property (ss 16-22)

 

16.     Preparation of deeds by conveyancer

 

            Subject to the provisions of this Act or any other enactment, the Registrar shall not attest, execute or register any deed of transfer, sectional mortgage bond, certificate of title or certificate of registration of any kind whatsoever, unless it has been prepared by a conveyancer admitted and enrolled in terms of the Legal Practitioners Act and practising in Botswana.

 

17.     Proof of certain facts in connection with deeds and documents by means of certain certificates

 

            (1) A conveyancer or any person other than a conveyancer who is authorised thereto by or under any law, who prepares a deed or other document for the purposes of registration or filing in the Deeds Registry, and who signs a prescribed certificate on such deed or document, accepts by virtue of such signing the responsibility, to the extent prescribed by regulations for the purposes of this section, for the accuracy of the facts mentioned in such deed or document or which are relevant in connection with the registration or filing thereof, and which are prescribed by regulations.

            (2) Subject to subsection (3), the Registrar shall accept during the course of his examination of a deed or other document in accordance with the provisions of this Act, that the facts referred to in subsection (1) in connection with the registration or filing of a deed or other document in respect of which a certificate referred to in the said subsection (1) has been signed, have for the purposes of such examination been conclusively proved.

            (3) The provisions of subsection (2) shall not derogate from the obligation of the Registrar to give effect to any order of court or any other notification recorded in the Deeds Registry in terms of this Act or a provision in any other law contained and which affects the registration or filing of such deed or other document.

 

18.     Registration of transfer of ownership and other rights

 

            (1) When a sectional plan has been registered and the sectional title register has been opened-

     (a)     ownership in any unit or land, or any undivided share in such unit or land, held under a sectional title deed shall, subject to the provisions of this Act or any other law, be transferred by means of a deed of transfer signed or attested by the Registrar, so however that where the State acquires all the units or land held under any sectional title deed, the Registrar shall make such alterations and entries in his registers and such endorsements on any such title deed as may be necessary to register transfer to the State of the property;

     (b)     the Registrar shall register any notarial lease of a unit or an undivided share in a unit and any notarial cancellation or modification of such a lease by means of an endorsement made by him on the sectional title deed, and he shall register any notarial sub-lease and any notarial cession of such a lease or sub-lease and any notarial cancellation or modification of such a sub-lease by means of an endorsement made by him on the lease in question, so however that if any such lease or sub-lease has lapsed by effluxion of time, the Registrar shall cancel the registration on production of proof that the lease or sub-lease has so lapsed;

     (c)     the Registrar shall register any sectional mortgage bond by which a unit or an undivided share in a unit or land held under a sectional title deed, or a registered lease or sub-lease of a unit or an undivided share in a unit or such land, or any registered real right in or over any such unit or undivided share in a unit or land, is hypothecated, and any cession, cancellation or modification of such bond, by means of an endorsement made by him on the sectional title deed or on the registered lease or sub-lease or bond or other deed; and

     (d)     the Registrar shall, except in the case of any real right which has elapsed, register any other real right (which is incorporated in a notarial deed) in or over a unit or an undivided share in a unit or land held under a sectional title deed, and any notarial cancellation or modification of such a real right, by means of an endorsement made by him on the sectional title deed.

            (2) Notwithstanding anything to the contrary in any other law contained, it shall not be necessary to annex a diagram to any sectional title deed under which a unit or an undivided share in a unit is held, if reference is made in such deed to the registered sectional plan.

            (3) The Registrar shall not register a transfer of a unit or of an undivided share therein, unless there is produced to him-

     (a)     a conveyancer's certificate confirming, that as at the date of registration-

           (i)       the association deemed to be formed in terms of section 39(1), has certified that all moneys due to it by the transferor in respect of the unit have been paid, or that provision has been made to the satisfaction of the association for the payment thereof, or in the case where no association has been formed that no moneys are payable;

          (ii)       that no real right of extension of a scheme referred to in section 27 is registered in favour of a developer or the association or, if such right is so registered, that it is disclosed in the deed of sale to the transferee referred to in section 27(16) or, if it is not so disclosed, that the transferee after the conclusion of the deed of sale has in writing exercised his option in terms of section 27(17), and that he has elected not to annul the sale on the ground of the defect;

     (b)     a clearance certificate from the local authority that all rates and moneys due to such local authority in terms of any law in respect of the land and buildings of the scheme have been paid if-

           (i)       provision is made by law for the separate rating of units; or

          (ii)       the transfer will result in the formation of an association in terms of section 39;

     (c)     if the transferor is a developer, an affidavit by the developer in which it is declared whether the relevant unit is a unit to which the provisions of section 11 apply or not and, if those provisions so apply, that the transfer is effected in terms of a contract which is not contrary to any provision of that section.

            (4) A unit shall be capable of being held by two or more persons in joint ownership.

            (5) Any person who is the joint owner of a unit held by such person and one or more other persons under one sectional title deed may, upon application to the Registrar in the prescribed manner, obtain a certificate of registered sectional title in the prescribed form in respect of his undivided share in such unit, and no transfer of a fraction only of his undivided share in such unit and no hypothecation or lease of the whole or any fraction of his undivided share in such unit shall be registered in the Deeds Registry, unless a certificate of registered sectional title in the prescribed form in respect of such undivided share is produced to the Registrar.

 

19.     Ownership of common property

 

            (1) The common property shall be owned by owners of sections jointly in undivided shares proportionate to the quotas of their respective sections as specified on the sectional plan.

            (2) A sectional title deed in respect of a section shall, in a separate paragraph, describe the undivided share in the common property of the owner of the section as an undivided share in the common property apportioned to the section in accordance with the quota of the section.

            (3) A section and its undivided share in the common property shall together be treated as one unit, and no section shall be disposed of or be otherwise dealt with apart from its appurtenant undivided share in the common property nor, subject to section 20, shall an undivided share in the common property be disposed of or be otherwise dealt with apart from the section to which it is appurtenant.

            (4) Any insurance of a section shall be deemed also to insure the undivided share in the common property of the owner of the section, even if no express reference is made to such share.

 

20.     Dealings with common property

 

            (1) The owners and the holders of a right of extension referred to in section 27 may by unanimous resolution direct the association on their behalf to transfer common property or any part thereof, or to let common property or any part thereof under a lease, and thereupon the association shall, notwithstanding any provision of section 20 of the Deeds Registry Act, but subject to compliance with any enactment relating to the subdivision of land or to the letting of a part of land, as the case may be, have power to deal with such common property or such part thereof in accordance with the direction, and to execute any deed required for the purpose:

            Provided that if the whole of the right referred to in section 27 is affected by the sale of common property, such right shall be cancelled by the Registrar with the consent of the holder thereof on submission of the deed of transfer of the right.

            (2) Any transaction in pursuance of a resolution referred to in subsection (1) shall be accompanied by a copy of the relevant resolution, certified by two trustees of the association.

            (3) Where the transaction in question requires to be notarially executed, such resolution so certified shall be produced to the notary public concerned and be retained by him in his protocol.

            (4) The Registrar shall-

     (a)     register the transfer of the land comprised in the common property, and thereupon the land shall revert to the land register and the Registrar shall make an appropriate endorsement and entry on such title deed and in his records to give effect thereto:

                      Provided that if a portion only of the land comprised in the common property and on which no section or part of a section is erected, is so transferred, no endorsement thereof shall be made on the sectional title deeds of the owners of units:

                      Provided further that in such a case where a portion only of the land comprised in the common property is transferred, a diagram of such portion approved by the Director in terms of the Land Survey Act, shall be annexed to the title deed;

     (b)     notify the Director and the local authority of any reversion of any land to the land register under paragraph (a), and upon receipt of such notification the Director shall make an appropriate endorsement on the original sectional plan and the Deeds Registry copy thereof; and

     (c)     register a notarial lease of land comprising common property by making an appropriate endorsement against the schedule of conditions referred to in section 12(3)(b), and no endorsement thereof shall be made on the sectional title deeds of the units:

                      Provided that where a lease is registered over a portion only of the land comprised in the common property, a diagram of such portion approved in terms of the Land Survey Act shall be annexed to the deed of lease.

            (5) Where, pursuant to subsection (1), it is sought to sell a portion of the common property on which a section is erected, the Registrar shall not register the transfer unless the registration of the section in question has been cancelled with the written consent of the owner.

            (6) Where pursuant to subsection (1) it is sought to let land which forms part of the common property or a portion thereof on which a section or part of a section is erected, the Registrar shall not register the lease, unless it is made subject to any right which the owner of the section or part of the section may have.

            (7) When the registration of a section is cancelled under subsection (5), the quota of the section shall lapse and the quotas of the remaining sections shall be proportionately adjusted.

            (8) The Registrar shall notify the Director and the local authority whenever the registration of a section has been cancelled under subsection (5), and upon receipt of such notification the Director shall effect the necessary amendments to the original sectional plan, the Deeds Registry copy of the sectional plan and the schedule thereto specifying the quota of each section.

            (9) Where part of a section is erected on a portion of the common property the unaffected part of the section in the scheme shall be substituted in accordance with an amended participation quota schedule, which shall be referred to the Director for approval.

            (10) The Director shall notify the Registrar of a change or amendment of a sectional plan in terms of subsection (9) which affects the description or extent of a section, and thereupon the Registrar shall, simultaneously with the registration of the transfer of the part of the land included in the scheme, make the necessary endorsement against the title deeds in question :

            Provided that the Registrar shall not register the transfer of the common property, unless the sectional title deed of the affected section is endorsed with the new extent as reflected in the amended participation quota schedule.

            (11) The Registrar shall notify the Director and the local authority whenever an endorsement has been made in terms of subsection (10), and on receipt of such notice the Director shall make the necessary amendments on the original sectional plan, the Deeds Registry copy of the sectional plan and the schedule thereto specifying the quota of each section.

            (12) Where in terms of subsection (1) it is sought to sell a portion of land on which an exclusive use area or part thereof is registered, the Registrar shall not register the transfer, unless the registration of the exclusive use area or part thereof has been cancelled with the written consent of the holder.

            (13) The Registrar shall notify the Director and the local authority when the registration of an exclusive use area or part thereof has been cancelled in terms of subsection (12), and on receipt of such a notice the Director shall make the necessary amendments on the original sectional plan and on the Deeds Registry copy of the sectional plan.

            (14) When the whole of the land comprised in the common property shown on the sectional plan is transferred by the association pursuant to this section, the sectional title deeds of the owners of units and the title deeds of the holders of any registered real right in the units, and the title deeds of the holders of exclusive use areas shall be surrendered to the Registrar for cancellation, and the title deed of any other registered real right in the land, excluding mineral rights, shall be surrendered to the Registrar for endorsement, and the Registrar shall close the sectional title register and notify the Director and the local authority that the sectional title register has been closed.

            (15) Upon receipt of the notification referred to in subsection (14), the Director shall cancel the original sectional plan and the Deeds Registry copy of the sectional plan.

 

21.     Transfer of mortgaged unit, etc.

 

            The provisions of sections 54 and 55 of the Deeds Registry Act shall have effect with reference to the transfer of any mortgaged unit or undivided share in a unit, the cession of any mortgaged lease of a unit or undivided share in a unit, the cession of any mortgaged real right in or over a unit or an undivided share in a unit, and the transfer under section 20 of any mortgaged common property or land or an undivided share therein.

 

22.     Compulsory acquisition of common property or rights therein

 

            (1) Whenever the whole or any part of, or any right in, the common property is compulsorily acquired under the provisions of any law, service of a notice of acquisition on the association shall be deemed to be service thereof on the registered owner of every section in the building, and each such owner shall be deemed to have appointed the trustees of the association as his duly authorized agents and representatives-

     (a)     to negotiate and settle the compensation payable to him, and to that end to employ attorneys, advocates and other experts; and

     (b)     on his behalf to receive and give valid acquittance for any compensation moneys paid.

            (2) Any compensation moneys received by the trustees on behalf of the owners in terms of subsection (1), shall be paid to the owners in accordance with their participation quotas after they have received notice of such distribution in writing, so however that an owner may notify the trustees before such moneys are so distributed that he considers such a distribution inequitable, in which event the compensation moneys shall be distributed-

     (a)     in accordance with a division approved by unanimous resolution; or

     (b)     in accordance with a division approved by an arbitrator, being a practising advocate of not less than 10 years' standing or a practising attorney of not less than 10 years' standing, nominated by the trustees.

            (3) The provisions of section 20(4)(a) and (b) shall apply to a transfer pursuant to an acquisition of land or a servitude or other real right in land comprising common property.

            (4) When land comprising common property on which a section or a part of a section is erected is transferred pursuant to an acquisition, the Registrar shall cancel the registration of such section in his records and shall endorse the Deeds Registry copy of the title and any bond, lease or other registered document affected, to reflect the cancellation of the section, and shall in like manner endorse the owner's copy of the title deed or the holder's copy of the bond, lease or other document whenever subsequently lodged at the Deeds Registry for any purpose.

            (5) The provisions of section 20(6), (7), (9) to (14), shall apply to the cancellation of a section in terms of subsection (4).