Conveyancers
If you are in need of legal advice or assistance, we are highly qualified in all the legal matters relating to South African property law and offer a wide range of legal services to both private and corporate clients. Our conveyancer can assist with everything from negotiations and agreements to all other related property transactions. We can offer our expert advice on mortgage and notarial bond matters as well on the transferring of your properties conventional or sectional titles. These can take anything from 50 to 65 days to complete, depending on the specific circumstances of your case. Our property professionals will explain the entire process in detail from the deed of sale up to when the legal documents are lodged at the Deeds Office. There are various costs involved in transferring a property, with a clear distinction between professional fees and disbursements made on behalf of the conveyancer. We will make sure that the professional fees charged by the conveyancer are done within the Law Society of South Africa’s national guidelines. The conveyancer will then also collect funds from the seller and purchaser before registration takes place.
We can also assist with the sub-division and consolidation of properties as well as various other applications, endorsements, contracts and consents that can be made. Our conveyancer is also an expert in drawing up ante-nuptial contracts, township and sectional title developments and notarial leases and servitudes.
If you would like advice from our professional conveyancer on any property law matters, or if you require another form of legal advice from us please Contact us today for more information on our services and areas of expertise.
Conveyancing Process
An attorney or estate agent usually prepares an agreement of sale of immovable property. The agreement of sale must be in writing and is signed by both the seller and purchaser. The signed agreement is then forwarded to a conveyancer, an admitted attorney who has passed a specialised conveyancing examination and has been admitted as a conveyancer in the High Court of South Africa, to attend to the registration of transfer of the immovable property. Conveyancers are by law the only attorneys entitled to attend to the transfer of immovable property and registration of mortgage bonds. The seller (in Kwazulu-Natal the purchaser) is entitled to appoint the conveyancer to attend to the transfer. This may be varied by agreement between the seller and the purchaser, however if a dispute arises between the seller and the purchaser, the conveyancer represents the seller.
The purchaser is entitled to appoint the conveyancer to attend to the registration of the mortgage bond, however, the bond conveyancer represents the bank that granted the mortgage bond. The conveyancer will charge a fee to attend the transfer of the property and registration of the mortgage bond (if applicable). This fee is usually charged according to a recommended tariff as laid down by the Law Society.
Initial Steps
On receipt of the agreement the conveyancer:
- Reads the agreement of sale and takes note of the important clauses of the agreement, especially financial details, suspensive conditions and important dates;
- Conducts a Deeds Office search to verify details of the owner and of the property, particular emphasis is placed on mortgage bonds or interdicts registered against the property;
- Acknowledges receipt of instructions to estate agent, seller & purchaser and requests seller and purchaser ID details and FICA documents (such as marriage certificate, ANC, utility bill and SARS document reflecting the party’s income tax number);
- Checks whether purchaser’s bond has been granted (if applicable);
- Obtains the original title deed from the existing bondholder. If the property is not bonded the original title deed will be in the possession of the seller;
- Applies to the municipality or body corporate/managing agent for rates figures/levy figures, which amount must be paid by the seller prior to registration of the transfer in order to receive a rates clearance certificate or levy clearance certificate.
Cancellation of Seller's Existing Bond
The conveyancer obtains the bond account number of the existing bond from the seller and advises the existing bondholder (bank) that they are attending to the transfer of the property and that they require the original or copy of the title deed and the amount required by them to cancel the bond. The existing bondholder (Bank) then appoints their own conveyancers who will attend to the cancellation of the existing bond over the property. The existing bondholder will forward to them the original title deed and advise of the amount owing under the existing bond. The cancellation attorneys will forward a copy of the title deed and guarantee requirements to the conveyancer attending to the transfer.
Once the conveyancer has the cancellation figures from the bondholder of the amount still owing, they will prepare the necessary documents for signature by the seller. The conveyancer ensures that the seller is able to pay the amount outstanding to the bondholder and is required to furnish the bondholder with a guarantee. Once the bond cancellation attorneys have received the guarantee for the amount required to cancel the bond they will draft the consent to cancel the existing bond, which will be lodged simultaneously with the transfer documents. Once the transaction is registered the conveyancer will then pay out according to the terms guarantee.
Lost title deeds
The deeds office keeps a record of all property transactions. If a title deed is destroyed or lost, application can be made to the deeds office for a duplicate original of the deed, at a fee. The application is accompanied by an affidavit deposed to by the owner of the property (seller) stating that the original title deed is lost or destroyed and cannot be found. Once the Registrar is satisfied he will then issue a certified copy of the title deed, which will be treated as if it were the original.
Signing of transfer documents and paying transfer costs
The seller and purchaser will attend at the conveyancer’s offices to sign the required transfer documents. The seller will pay the conveyancer the amount required by the municipality and/or Body Corporate to obtain the rates clearance certificate and/or levy clearance certificate (which amount includes arrear rates, taxes, water and electricity and rates, taxes, water and electricity for 4 months in advance). The purchaser will pay to the conveyancer the estimated transfer costs, as indicated on the proforma invoice, which includes the amount to be paid to SARS for transfer duty or VAT, transfer fees, and disbursements. The conveyancer attends to payment of these amounts on behalf of the purchaser.
Preparation of bond documents, signing and paying costs
The bond attorney drafts the mortgage bond and arranges for the purchaser to sign and pay costs, which includes the deeds office registration fee, the conveyancing fee plus VAT and disbursements. The bond attorney ensures that the bank’s requirements have been fulfilled. Guarantees for the amount of the bond are prepared and forwarded to the conveyancer.
Ready for lodgment
The conveyancer will ensure that they are in possession of the transfer duty receipt, rates clearance certificate or levy clearance certificate, the purchase price is secured, and that all other conditions are met. The conveyancer then signs the transfer documents and arranges lodgment with the conveyancers attending to the registration of the purchaser’s new bond and the conveyancer cancelling the seller’s existing bond (if any).
Documents lodged in the Deeds Office
The transfer documents, bond documents and bond cancellation documents are linked together and lodged simultaneously.
On "Prep" or Up for fees
The linked documents are examined by deeds office examiners and if found in order, the conveyancer will notify the bond attorney and cancellation attorney that the transactions are to be registered the following day. This is commonly referred to as “up for fees”, as on this date the Deeds Office fee is payable.
Preparation of final accounts
On the day of registration the conveyancer prepares the final accounts and presents the guarantees for payment. The proceeds of the sale are distributed according to the sale agreement and any other directions of the seller, and if applicable, the estate agent’s commission is paid.
Deeds office records updated and original documents returned
After registration, the deeds office microfilms the registered documents, updates its computer records, and returns the registered documents to the conveyancers. The conveyancers will collect the original documents from the Deeds Office. If the purchaser obtained a bond and it was registered over the property, the conveyancer will then forward the original title deed to the bondholder. If the purchaser bought the property with cash and no bond was registered over the property, the original title will be forwarded to the purchaser for safekeeping.
Conveyancing Terms
Agent’s Commission
That portion of the purchase price that the Seller pays to the estate agent if one is involved because of his agency to secure the sale from the Seller to the Purchaser.
Bond: In return for lending the money to fund the purchase price of the property, the bank registers a bond over the property and becomes the bondholder. The property is the bank’s security if the owner defaults. Transfer of the property cannot be achieved without the bondholder’s consent.
Cancellation of Existing Bond
If a bond is registered over the property in the name of the Seller’s banking institute, the bond must be cancelled. The bank provides an amount that it will accept as payment for the outstanding amount of the home loan.
Conveyancer
An attorney who has passed the necessary examinations and has been admitted by the High Court as such who attends to the registration of the transfer of the property from the Seller to the Purchaser.
Costs of Transfer
The various attorney’s costs, as well as the duty that is payable by the Purchaser. It is important to remember that the sole function of the Conveyancer is to transfer the property from the Seller to the Purchaser. Any work not part of that which is done by the Conveyancer such as collecting occupational interest, as well as sorting out problems, is not included and can be separately charged by the conveyancer to the party who has given the instructions.
Deeds Office
That Government Office where each and every piece of property in the Republic of South Africa is recorded. Registration of the transfer finally takes place in the Deeds Office.
Electrical Compliance Certificate
That certificate issued by the Seller in terms of relevant legislation and which has to be issued by an accredited electrical contractor to the effect that electrical wiring, etc. in the premises are up to a safe standard. Depending on the terms of the deed of sale, the Seller is responsible for the issuing thereof, and the cost relating thereto, inclusive of any cost relating to bringing the building up to the standard required by the electrical contractor.
Occupation Date
That date inserted in the Deed of Sale when the Seller vacates the property and hands it over to the Purchaser. Make sure that the occupation date is convenient to both the Seller and the Purchaser, because it cannot be amended unilaterally.
Occupational interest / Occupation rent
That amount of money payable by the party enjoying occupation of the premises. As from the occupation date, the amount is payable monthly in advance without any deduction. These monies are apportioned by the conveyancer on registration of transfer.
Rates Clearance Certificate
It is the certificate that the conveyancer obtains from the relevant local authority, or if the property is a sectional title unit from the managing agent of the body corporate, indicating that rates and taxes or levies have been paid. The conveyancer pays these monies up front to enable the authority concerned to consent to the transfer. He takes a deposit from the purchaser and apportions the various sums upon registration of transfer.
Registration of Transfer
That is the end of the line when the property is finally registered in the Deeds Office in the name of the Purchaser. From that moment onwards the Purchaser becomes the full owner of the property.
Risk
Means responsibility. In the majority of cases, risk passes from the Seller to the Purchaser on date of registration of transfer. From that date, the purchaser is responsible for rates, taxes, and all imposts levied on the property. In this regard, the Deed of Sale must be studied carefully. Even though the Purchaser is in possession of the premises, the Seller might still be saddled with the risk in respect of the premises, i.e. has to ensure that the property is adequately insured, etc.
Special Investment of Trust Money
Often the purchase price is guaranteed by means of a cash deposit. Upon receipt of written instructions, the conveyancer will invest the cash in an interest-bearing account in terms of the Attorneys Act, with interest accruing being for the benefit of the purchaser. The estate agent can also invest such monies in his trust account, with the interest payable to the purchaser. Rest assured that these monies are protected by law; if it is embezzled by the attorney or the estate agent, the purchaser can claim it back from the relevant fidelity fund.
Transfer Duty
It is that amount of money that the Purchaser pays to the Receiver of Revenue which is regulated by the Transfer Duty Act.