One of the many problems with the STA is that the Act merely requires the Developer to EXERCISE the rights of extension with the time period stipulated, but does NOT require him to REGISTER the extension in the Deeds Registry within that time period. The rights may well have been exercised within the requisite time period, but the Developer may not yet have registered the extension due to all kinds of reasons.
It should not be the duty of the conveyancer to police this. If the body corporate or any member thereof wishes to challenge the Developer on this, then they must do so, but there is no basis to foist this responsibility onto the conveyancer. The problem is that by the time this gets into the Deeds Registry, the buildings are a fait accompli. This, with respect, has nothing to do with the Registrar of Deeds. If neither the Body Corporate nor the members object to the extension being registered, just where does the Registrar's locus standi to object derive from? It has, frankly, nothing to do with him. Likewise with the area of the common property over which the rights of extension were reserved - notwithstanding the conference ruling - which is in anyway misleading, vague and poorly phrased.
Where the rights of extension have been delineated on a sectional plan approved by the Surveyor General, then it should be the duty of the SGO to establish whether the extension falls within the boundaries of the right reserved. No conveyancer or Registrar of Deeds can establish this for certain, nor should it be their duty to do so. And if the extension DOES fall outside of the boundary of the ''real right'' area, then quite patently the extension cannot be registered until this encroachment has been dealt with in one way or the other, but this should have been established by the SGO before the plans were approved.
To place this duty on the conveyancer or the Registrar ex post facto is truly to place the cart before the horse. This is so obvious that it should not be necessary to say so, and is preposterous. The SGO should not have approved the sectional plan of extension in the first place if there was an encroachment - nor should the land surveyor have even submitted the plans to the SGO unless and until the problem had been resolved.
Where the rights of extension have been reserved in ''general terms'' without any diagram approved by the SGO, but merely indicated the ''plan to scale'' referred to in section 25(2)(a) of the Act, then the Roseparkadmin case is clear. It is the responsibility of neither the Registrar nor the conveyancer to police this. The conveyancer should not be called upon to certify anything. It has nothing to do with the Registrar of Deeds.
J Leslie Smith & Company
I would like to offer the following comments on the issues raised : 1. Where the RRE was not exercised prior to the lapsing of the time for which it was reserved , the Registrar will not refuse to register the exercising thereof , provided proof can be submitted that the buildings were erected prior to the period specified in the title of the RRE 2. The Surveyor General has no insight into the section 25 (2) plans when approving the plans for the exercising of a real right of extension and it is for this reason that the CRD and Registrars Conference ruled that the Surveyor / Architect concerned must provide a certificate that the RRE does dot encroach on other common property, not included in the reserved right