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Deeds of Gift Again – Part 3

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Last week we looked at further provisions in the Stamp Act. This week, we will look at the declaration that the lawyer who is drafting the Deed of Gift has to make and provisions made for any one who violates the law.

Solemn Declaration

Subsection 4 of Section 24 requires the lawyer (legal practitioner) drafting the document to make a solemn declaration.{{more}} The lawyer declares that to the best of his “personal knowledge, information and belief, after all due and diligent and proper inquiries, the transaction is a bona fide transfer of property.” (bona fides means in good faith). It further declares that it is “a voluntary disposition and there is no consideration in money or money’s worth.”

Penalty

Subsection 5 of Section 24 is the provision for those persons who violate the law. It states that a person who makes a statement with intent to deceive or who makes a reckless statement to cause a document to be registered without paying the requisite stamp duty shall be guilty of an offence. The person need not be a party to the transaction, that is, the party is not named on the document. Upon conviction, the person will be liable to a fine of three times the amount of the stamp duty that is payable. Moreover that person will be liable to a term of imprisonment for three years. The Registrar could also recover from the parties to the transaction three times the amount of stamp duty that was payable on the deed of gift.

Valuation

Stamp duty is ordinarily determined on the value of the property in the open market at the time of the transaction. This value of the property will be that in the opinion of the Registrar. In forming her opinion, she would be guided by the professional. Hence she may require the party to provide a valuation. If she is satisfied with the valuation, then she can make an assessment of the stamp duty. If she is not satisfied, then she could require the Commissioner of Estate Duties to make an assessment. The owner or person in charge of the property must allow the authorized persons from the valuation office to inspect the property for the purpose of the valuation. If a person is not satisfied with the valuation arrived at, that person may appeal to the High Court.

The valuation officer in collaboration with the Chief Surveyor determines the value of property presented. Valuation of property is a regular procedure in order to arrive at the stamp duty in conveyance for sale. The lawyer normally makes a declaration. If the value is approved, the document is signed by the inspector and the Chief Surveyor. This document is attached to the deed.

New arrangements

It is intended to have the Registrar take a more active role in deciding about the allocation of the exemption. The Registrar is to assume the role of the lawyer, not in drafting the document, but in making the necessary inquiries. In other words, the Registrar must now require the birth certificate of the recipient to determine whether he or she is eligible for the exemption. Brothers and sisters will no longer get the exemption from the stamp duties, but the other categories have been retained.

Ada Johnson is a solicitor and barrister-at-law.
e-mail address is: exploringthelaw@yahoo.com

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