DEEDS REGISTRY: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Deeds Registry (Conveyancers and Notaries Public (Fees and Charges) Regulations
(under section 11)
(1st August, 1960)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Identity of persons
PART II
Preparation of Deeds and Documents
3. Deeds etc., to be written on paper; or in electronic method approved by Registrar
4. Deeds, etc. to be neat
5. Spaces
6. Registrar may decline to attest, etc.
7. Names, etc. of persons named in deeds
8. Place and date of execution
9. Date and number granted, transfer, etc.
10. Properties to be specified in separate paragraphs
11. Land in deed to be described
12. Extent of land to be expressed in words and figures
13. Meaning of "share"
14. Registrar may require conveyancer to furnish statement
15. Diagram
16. Minors
17. Partnerships
18. Preparation of deeds
19. Community of property
20. Rehabilitated insolvent
21. ...
22. Authority for acts of Registrar
23. ...
24. Conditions to be included in mortgage or to be referred to therein
25. Consent of holders of bonds
26. Deeds to be prepared by conveyancer
27. Powers of attorney
PART III
Lodgement and Execution of Deeds
28. Lodgement for examination
29. Time of cession
30. Production of documents
31. Land transfer in pursuance of a will, etc.
32. Production of title deed
33. Arbitration
34. Transfer in favour of estate of a deceased person
35. Value of immovable property
36. Fideicommissum
37. Deeds, etc. in favour of bank, etc.
38. Consolidated title
39. Servitudes
40. Cancellation
41. Endorsement of title deeds
42. Reference to documents already filed
PART IV
Powers and Certified Copies thereof
43. Agents
PART V
Copies of Deeds and Documents
44. Copies for information
45. Copies for judicial purposes
46. Deeds lost or destroyed
47. Certified copies
PART VI
Miscellaneous
48. Lodgement at deeds registry
49. Prospecting contracts
50. Cession of rights to minerals
51. Mynpacht provided
52. Transfer of certain rights
53. Endorsement on bonds
PART VII
Forms
54. Form of certificate of title
55. Deed of transfer of customary land grant
56. Certificate of registered land title
57. Certificate of registered state title
58. Deed of transfer
59. Deed of partition transfer
60. Certificate of registered title of undivided share
61. Certificate of registered title
62. Certificate replacement
63. Correction of error in registration
64. Certificate of consolidated title
65. Certificate of amended title
66. Certificate of uniform title
67. Certificate of registered title of portion of a piece of land
68. Consent by surviving spouse
69. Certificate of township title
70. Consent to substitution of debtor
71. Certificate of registered real rights
72. Certificate of rights to minerals
73. Certificate of rights to minerals
SCHEDULE
G.N. 21, 1960,
G.N. 34, 1962,
L.N. 5, 1965,
L.N. 84, 1966,
S.I. 76, 1980,
S.I. 139, 2020.
PART I
Preliminary (regs 1-2)
These Regulations may be cited as the Deeds Registry Regulations.
(1) The identity of a person shall be established by means of the person's—
(a) name;
(b) date of birth or, in lieu of the date of birth, by a method approved by the Registrar;
(c) identity document, in the case of a citizen; or
(d) passport number in case of a non-citizen,
which shall be entered in the register in which transactions relating to the person are recorded.
(2) The date of birth of a person shall be established by means of the person's identity document, passport, birth or baptism certificate or an affidavit produced to and filed by the Registrar.
(3) Where proof of the date of birth of any person has already been filed in the registry it will be sufficient to refer to such proof provided the conveyancer concerned certifies to or produces proof of the identity of the party.
(4) In recording the date of birth of any person in the appropriate register the Registrar shall cause a note to be made therein indicating the document with which such proof is filed.
(5) The Registrar shall rectify any error made in connection with an entry or note of the date of birth of any person appearing in his Registry upon proof to his satisfaction that an error has been made.
(6) The Registrar shall have authority in connection with any deed or document tendered for execution, registration or record to call for evidence to establish the identity or non-identity of any party thereto with any person whose name appears in any register kept in the Registry.
PART II
Preparation of Deeds and Documents (regs 3-27)
3. Deeds etc., to be written on paper; or in electronic method approved by Registrar
Deeds, powers, and other documents lodged for execution, registration or record shall be—
(a) written, printed or typed on paper; or
(b) in the form of any electronic medium,
approved by the Registrar.
(1) All deeds, powers, and other documents lodged for execution, registration, or record must be neatly and plainly written or typed, or printed with black ink of good quality and a margin of at least 37,5 mm allowed for binding purposes.
(2) Copying ink must not be used, and no carbon copy of any deed, power, or other document shall be accepted for the purpose of being filed in the deeds registry.
(3) Alterations and interlineations will render a deed, power, or other document liable to rejection, but, if made, they must be initialled by the person or persons executing the deed, power, or other document, as the case may be, and also by the persons attesting the same.
(4) If, however, the alterations or interlineations are attested by persons other than the original attestors, such persons shall attach their signatures.
(5) If any signature to a document is written across a stamp, or with other than black ink of good quality, or encroaches on the margin, the Registrar may decline to allow it to be used for the purposes intended.
(6) All alterations and interlineations must, in the case of a deed attested by a notary, be initialled also by such notary.
(7) The upper half of the first page of deeds must not be used for writing, typing, printing, or any other purpose, but must be reserved for the purpose of deeds registry endorsements.
(8) Any of the provisions of this regulation may be relaxed by the Registrar at his discretion.
Any spaces in a deed which have not been used shall be ruled through, and where a deed comprises more than one page the necessary catch-word shall be written at the foot of each page.
6. Registrar may decline to attest, etc.
If, in the opinion of the Registrar, the writing, typing, or printing in any deed, power, or other document lodged for attestation, execution or registration, or for any other purpose, is, owing to the faintness thereof, not calculated to secure durability, he may decline to attest, execute, register, or accept it, as the case may be.
7. Names, etc., of persons named in deeds
(1) Deeds, powers and other documents shall contain, in relation to the person named therein, the person's—
(a) full name;
(b) identity document in the case of a citizen;
(c) passport number in the case of a non-citizen; and
(d) date of birth,
except in respect of such person who is acting or who is appointed to act in a representative capacity.
(2) ...
(3) An addition of an "alias" to the description of any person by or to whom a deed lodged for execution or attestation in a deeds registry is to be passed shall not be permitted, and, if any such addition has been made in any other deed or power, or other document lodged for registration, the correct name only shall be recognised for the purpose of such registration.
(4) Deeds, powers, and other documents if expressed in a foreign language may, at the discretion of the Registrar, be accepted for registration or record if a translation duly certified by a person approved by the Registrar is lodged therewith.
8. Place and date of execution
Every deed and document executed in or lodged for registration or record in the deeds registry shall disclose the place and date of execution thereof.
9. Date and number granted, transfer, etc.
Every deed conferring title to land must quote the date and number of the grant, transfer or other title by which the land is held, and also the date and number of the grant, transfer or other title to which the diagram of the land is annexed or relates, as well as the name of the person in whose favour such last-mentioned grant, transfer, or other title was made.
10. Properties to be specified in separate paragraphs
(1) Where a deed conferring title to land includes more than one property, each piece of land shall be described in a separate paragraph, which shall be numbered, and each paragraph shall conform to the provisions of regulation 9.
(2) A separate registration clause must, if required by the Registrar, be inserted at the end of the deed in respect of each piece of land, which clause shall bear a number corresponding to the number of the paragraph in which the land is described.
(3) ...
(4) It shall not be necessary, where separate diagrams of two or more pieces of land are annexed to one and the same deed of transfer and transfer is sought of any of such pieces, to procure from the Director of Surveys and Mapping a copy of the diagram thereof for the purpose of annexure to the new transfer.
11. Land in deed to be described
(1) In describing land in a deed, the description shall be in accordance with the approved diagram or general plan approved by the Director.
(2) The registered number, if any, of the land shall be given, and in deeds conferring title to land the usual extending cause shall be inserted.
(3) In describing land no reference shall be made in a deed conferring title to land or in a mortgage bond to any building or other property, movable or immovable, which may be on or attached to the land.
(4) When the description of the situation of land in an existing deed is defective or insufficient, and it is desired in connection with a further transfer of such land to amend the same, the Registrar may, subject, if he thinks necessary, to the production of a certificate from the Director of Surveys and Mapping, permit such amendment to be made.
(5) It shall not be necessary to repeat the description (if any) of the boundaries mentioned in a diagram, provided that a suitable reference to such diagram is made in the relevant deed.
12. Extent of land to be expressed in words and figures
In the description of land conveyed or hypothecated in a deed or bond the extent thereof shall be expressed in words and figures.
In the description of land the term "share" shall be employed when an undivided share in a piece of land is being dealt with, and such share shall be expressed in one fraction in its lowest terms, the method of arriving at the result being also given in complicated cases.
14. Registrar may require conveyancer to furnish statement
(1) If land to be transferred or hypothecated is held by several deeds the Registrar may require the conveyancer to furnish a statement containing particulars regarding the different fractional shares and describing in complicated cases the method by which the result was arrived at, and also, where there are two or more owners, to indicate in such statement the shares held by each.
(2) If the land is one of several pieces described in a transfer deed or mortgage bond the conveyancer shall furnish a reference to the paragraph therein which relates to such land.
(3) Where possible, in transferring a share in land from two or more titles under which shares are held, one or more titles shall be exhausted.
No portion of any piece of land shall, except as provided by the Act, be transferred except upon a diagram thereof.
Where it is sought to transfer or cede immovable property to persons who have not attained the age of majority, such transfers or cessions shall, subject to the provisions of section 25 of the Act be made in the names of the minors, and not in those of their guardians, tutors, or curators, as the case may be.
(1) All deeds or documents executed by or on behalf or in favour of persons carrying on business as a firm or a partnership, or to which a firm may be a party, as also any power lodged or required in connection with such deeds or documents, must contain the full names of the partners constituting the firm.
(2) When property is registered in the name of a person carrying out business as a firm or a partnership it may, where the firm or the partnership consists of the same partners, be transferred, hypothecated, or otherwise be dealt with, as the case may be, on a power of attorney bearing the signature of the partner who has been duly authorised by a resolution of the firm or partnership.
(3) If any partner in a firm wishes to transfer his share in any property of the firm to the remaining partners or to the remaining partners and some other person or persons, or to some other person or persons alone, to the end that such remaining partners either alone or together with such other person or persons, as the case may be, shall form a new partnership to hold such property, such transfer shall not be passed unless the whole of the property, and not merely the share of the disposing partner, is transferred or ceded to the new partnership, and the deed, power, or other document necessary for the purpose shall be signed by each of the partners of the original firm or by his duly authorised agent.
(4) In like manner if a new partner is admitted into a firm, and if such new firm wishes to transfer or cede property taken over from the old firm such transfer or cession shall not be passed unless the said new firm has itself received transfer or cession of that property from the old firm.
(5) In the event of any property of a firm not being dealt with on dissolution in the manner described in subregulations (3) and (4), the deed, power or other document necessary for the transfer or cession to the partners thereof or such other persons to whom the same have been disposed of, shall be signed by each of the individual partners or by his duly authorised agent.
(6) If, during the continuance of a partnership any member thereof desires to register any transaction other than an endorsement pursuant to section 43 of the Act, affecting his share in any property registered in the name of the partnership, he shall not be permitted to do so until transfer has been passed to such member of the share to which he is entitled.
(7) When land has been sold by or to a firm or partnership the transfer duty receipt issued in respect of the sale shall disclose the names of the members thereof.
(1) The following procedure shall be observed in the preparation of deeds conferring title to land in regard to the conditions to which such land is or may be subject—
(a) where the land is subject to special conditions limiting the rights of the owner such conditions shall be repeated in every deed conferring title to such land, and where necessary be referred to as mentioned in the deed whereby they were created;
(b) where the land is subject to conditions other than those specified in paragraph (a) they shall, if the Registrar so requires, be repeated in every subsequent deed conferring title to such land, otherwise they shall be specially referred to as mentioned in the preceding deed, and their character be described in general terms;
(c) in any subsequent deed relating to land in connection with which the provisions of paragraphs (a) and (b), or either of them, have been applied, such deed shall follow substantially the preceding deed in its reference to the conditions and omit in this connection any mention of the preceding deed until such time as the land is made subject to further conditions, in which case such further conditions shall also be mentioned or specially referred to in the manner prescribed in such paragraphs;
(d) in every deed conferring title to land the rights of the State shall be expressly reserved;
(e) the number and the date of every deed to which reference is made in connection with conditions shall be quoted;
(f) should the provisions of this regulations not be applicable, the decision of the Registrar in regard to the procedure to be followed shall be observed.
(2) Where it appears from a deed that an owner of land has acquired any right of servitude over other land, such right should also be specially referred to or mentioned and described in every deed conferring title to the first-mentioned land.
(3) If a deed lodged for execution or registration reserves or grants an interest described as a life interest, except when such interest is created by will, the nature thereof shall be disclosed in such deed and in the relative power, if any.
(4) Conditions must, as far as practicable be embodied in the title-deed and appear immediately after the extending clause, and only in exceptional circumstances may they be contained in an annexure.
(5) No condition shall be included in any deed or bond which purports to impose upon a Registrar any duty or obligation not sanctioned by law.
Where a husband married in community of property desires to deal with land registered in the name of his wife, the wife should affix her signature and the date thereof to the power of attorney in the presence of a witness as evidence that the marriage still subsists, and, if she omits to do so, other satisfactory proof of such subsistence shall be produced.
Where in the circumstances contained in the proviso to section 56(6) of the Act it is necessary to pass transfer to the rehabilitated insolvent such transfer may be passed upon a power of attorney signed by the Master.
22. Authority for acts of Registrar
(1) The authority for the performance of any of the acts of registration specified in paragraphs (f), (g) and (h), cessions and cancellations specified in paragraph (j) and the cancellations specified in paragraph (q) of section 5 of the Act shall be given upon a separate sheet of paper by the holder of the bond or the parties to the prospecting contract or by his or their duly authorised agent and shall be signed and duly witnessed.
(2) Every such authority shall describe the bond or the contract and disclose the full name of the legal holder of the bond or of the parties to the contract and shall be retained by the Registrar.
24. Conditions to be included in mortgage or to be referred to therein
(1) Where it is sought to mortgage land held under special conditions limiting the rights of the owner the Registrar may require those conditions to be set out in the bond or a suitable reference made thereto.
(2) Every mortgage bond must contain a full and clear description of the property to be hypothecated, including the extent thereof, and when two or more properties are to be hypothecated each property shall be described in a separate paragraph.
(3) The date and number, if any, of the deed by which the property is held must also be quoted in each paragraph, provided that where more than one property is held by one and the same deed, the date and number of the deed may be quoted after the description of the last of such properties.
(4) When bonds are lodged for the purpose of noting any part payment thereon such part payment need not be noted on the title-deed of the property affected.
(5) The deed of cession of a bond shall set forth the causa of such cession.
(6) Where application is made for the registration of a cession of a bond which has been previously ceded but such previous cession or cessions have not been registered, the applicant shall furnish the Registrar with all previous cessions or notarially certified copies thereof which previous cessions need not be registered.
(7) Where the cession of a bond has, prior to the commencement of these Regulations, been endorsed upon such bond the Registrar may accept for filing a duplicate original of the cession or an acknowledgement of such cession, in terms approved by him, signed by the cedent and duly witnessed, or a notarially certified copy of such cession.
(8) Any waiver of preference in respect of a registered real right in land (including rights mentioned in section 63 of the Act which may be contingent) to or in favour of the legal holder under a registered or registrable mortgage bond shall, if such bond has been registered, be contained in a notarial deed or in such bond as the owner of such right may elect.
(9) Every waiver registered in terms hereof shall be duly noted on the owner's title to such right, and in the case of a registered bond on such bond.
25. Consent of holders of bonds
(1) The consents of the legal holders of bonds referred to in sections 27 and 97 of the Act shall be furnished in duplicate.
(2) If a duplicate is not furnished, the Registrar may accept a copy certified by a conveyancer or notary.
(3) The original shall be retained by the Registrar and the duplicate or copy shall be annexed to the bond.
26. Deeds to be prepared by conveyancer
(1) Every deed of transfer, certificate conferring title to immovable property or mortgage bond shall be prepared by a conveyancer and shall bear an endorsement signed by such conveyancer that it was prepared by him or her, and he or she shall also initial personally all alterations or interlineations in such transfer certificate or bond and every page thereof not requiring his signature if such transfer certificate or bond is written on separate sheets; and no such transfer certificate or bond shall be accepted for execution or registration which does not bear such endorsement and is not so initialled:
Provided that—
(i) in cases where the alteration or interlineation does not, in the opinion of the Registrar, require initialling by the preparing conveyancer, such alteration or interlineation shall be initialled by the executing conveyancer; and
(ii) this proviso does not apply to a certificate of title.
(2) The provisions of this regulation shall not apply to the registration and transfer of a deed of customary land grant or any instrument attested under the Married Persons Property Act.
(1) Every power of attorney or other authority to perform an act in the deeds registry, every deed of partition, and every agreement or consent by a bondholder, owner of immovable property or holder of any real right prescribed by the Act or regulations, executed in Botswana after the commencement of these Regulations, and tendered for registration or record in a deeds registry, shall be prepared by a practising attorney, notary or conveyancer and shall bear an endorsement signed by the attorney, notary or conveyancer and shall bear an endorsement signed by the attorney, notary or conveyancer, who prepared such power, authority, deed, agreement or consent, that it was prepared by him; and no such power, authority, deed, agreement or consent, shall be accepted by the Registrar for registration or record which does not bear such endorsement.
(2) Any alteration or interlineation shall also be initialled by the person who prepared such document.
PART III
Lodgement and Execution of Deeds (regs 28-42)
(1) All deeds, bonds, documents and powers of attorney proper for execution or registration, as the case may be, in the deeds registry, shall be lodged with the officer responsible for receiving at any time during working hours, who shall note thereon the date of lodgement for examination by the owner or by an attorney, notary or conveyancer practicing at the seat of the Registry.
(2) A power of attorney shall be lodged singly, and all other deeds described in subregulation (1) shall be lodged in duplicate, except where the Registrar otherwise directs.
(3) In the event of two or more mortgage bonds being passed on the same day by one and the same mortgagor over the same property, the Registrar shall, if each bond does not disclose the order in which it is to rank, note on each the exact time at which he affixed his signature thereto.
(4) Any registration under the Act shall be deemed to have been effected upon appending the Registrar's signature and affixing the seal of office.
(5) Although a deed is to be fully examined in the first instance, if a defect of such a nature as to justify rejection is discovered in connection with any deed or any document lodged for execution or registration, the Registrar shall have power to direct that the further examination of the deed shall be postponed until the defect has been cured and to reject such deed where necessary.
No cession of a balance due under any bond shall be registered until the amount paid in reduction thereof has been written off in the appropriate register, nor may any bond, part of the capital amount of which has been repaid be substituted under the provisions of section 55 of the Act until the part-payment has been so written off.
(1) Where application is made under the provisions of section 43 of the Act, there shall be produced, in addition to the title-deeds and bonds, the undermentioned documents—
(a) proof of the appointment of the executor in the estate of the deceased spouse;
(b) where transfer duty is payable, a receipt for such duty; a certificate, that all taxes, duties, and fees payable to the Government or local authority have been paid;
(c) where the property or bond was bequeathed to such survivor, a copy of the will certified by the Master;
(d) where the property was purchased from the estate by such survivor, being also the executor in the estate, an order of court confirming the sale;
(e) where action is being taken under sections 47, 49 or 52 of the Administration of Estates Act (Cap. 31:01), a certificate of consent from the Master;
(f) in circumstances where no consent or certificate of the Master is required, a certificate from the Master or a conveyancer that the liquidation account in the estate has lain for inspection, that no objection thereto has been received and that the endorsement to be made is in terms of the account;
(g) where such survivor is an heir in terms of section 4 of the Succession (Rights of Surviving Spouse and Inheritance Family Provisions) Act (Cap. 31:03)—
(i) proof that the deceased spouse left no valid will; and
(ii) proof of the balance of the estate for distribution by means of a certificate of the Master or a copy of the liquidation account certified by the Master.
(2) When a title-deed is endorsed under section 43 of the Act the Registrar shall make an appropriate note in the land register affected.
31. Land transfer in pursuance of a will etc.
(1) Where land is to be transferred in pursuance of the provisions of a will, codicil, or other testamentary instrument, a certified copy of the will, codicil, or other testamentary instrument, as the case may be, shall be lodged with the deed.
(2) The Registrar may also in the exercise of his discretion require any executor who seeks to transfer land belonging to the estate under his administration, to lodge a certified copy of the will, codicil, or other testamentary instrument, and of the liquidation account in the estate.
(3) If, however, a copy is already lodged in the deeds registry, it will be sufficient if a note is made in either case on the deed indicating the number and the date of the deed with which such copy is filed.
(4) Where land is sought to be transferred by an executor in pursuance of—
(a) the exception (b) to section 21 of the Act, there shall be lodged with such transfer a certificate by the Master or the executor or a conveyancer that the land has been sold to pay the debts of the joint estate; or
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