Deeds Office rejection for lack of spousal consent
Mr N, married in community of property to Mrs N, signs a deed of sale on 14 March selling his erf in Swakopmund to Ms B for N$2.3 million. The sale agreement identifies Mr N as sole seller and records that he is unmarried. Mrs N lives in Windhoek; the couple is estranged but not divorced. The estate agent says Mrs N 'verbally agreed' and that the purchase price will pay off joint debts. Ms B pays a N$200,000 deposit and obtains a bond. The conveyancer prepares the transfer and signs the required certificate. The Deeds Office rejects the deed because no written consent by Mrs N is attached. Mr N now refuses to ask his wife to sign and says the sale is valid because he is the registered owner. Transfer deadline is in three weeks.
1. Was Mrs N's written consent required for the sale and transfer? Explain.
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Yes. Because the parties are married in community of property, the erf forms part of the joint estate. A spouse may not alienate immovable property forming part of the joint estate without the written consent of the other spouse. The consent requirement is not satisfied by a verbal assurance reported by an estate agent, and it is not cured by the fact that Mr N is the registered owner. Registration reflects title; it does not remove the matrimonial-property restriction.
A transaction concluded without the required consent is not necessarily automatically void, but it is vulnerable to being set aside at the instance of the non-consenting spouse. The Deeds Office is therefore entitled to reject the deed. The false statement in the sale agreement that Mr N is unmarried aggravates the problem and may expose him to a damages claim.
2. Can the conveyancer lodge the transfer without Mrs N's consent? What are the conveyancer's professional duties?
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The conveyancer cannot simply lodge the transfer and must not sign a certificate that is untrue or misleading. A conveyancer certifies matters to the Deeds Office and owes duties to the court, the registry and the public. Knowing that the seller is married in community of property and that the spouse has not consented, the conveyancer should refuse to proceed as if the consent exists.
The correct course is to advise the parties of the defect, request Mrs N's written consent, and, if Mr N refuses to cooperate, seek appropriate legal relief or withdraw from the transfer. The conveyancer should not backdate documents, procure a false affidavit, or rely on the agent's report of verbal consent. If the purchaser wishes to compel performance, that is a matter for litigation, not for a false certification.
3. What remedies does Ms B have against Mr N?
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Ms B should first establish whether Mrs N will consent. If consent is obtainable, Ms B can claim specific performance, requiring Mr N to deliver transfer against payment of the balance. If Mr N refuses or cannot procure consent, he is in breach of the deed of sale. Ms B may cancel, recover her deposit with interest, and claim damages for losses caused by the breach, including bond costs and other reasonable expenses.
Because the sale may be voidable at Mrs N's instance rather than automatically void, Ms B's position depends on whether Mrs N attacks the transaction. Ms B should join Mrs N or seek a declaratory order if necessary. She may also have a claim against the estate agent if the agent misrepresented Mr N's marital status, but that is separate from her contractual claim against Mr N.