Registration of transfers and bonds

Applications for lost title deed copies

Conveyancing & Private Mortgage

We can assist you to register a mortgage bond over the property of your potential debtor or to transfer your property.

Conveyancing need not be a nightmare

We can assist with the transfer of property ownership whether you are buying or selling.

Do you need a commercial attorney

We can read or draft your contract and then help you manage compliance.

Modern approach to litigation

How we keep up to date with trial developments.

Damages for Negligence

Delictual claims often depend on some negligence by others.Read about it here.

Consultations need not always be a costly affair

But let these pages help you prepare.

Consultations need not always be a costly affair

But let these pages help you prepare.

Matrimonial Dispute?

What are your rights and what is important in dealing with a marriage dispute?

Delictual Claims

Let us advise you on how to choose between claiming, defending or settling.

Risk Analysis and Avoidance

Free up your time to focus on your business expertise. We can assist to take care of the legal stuff.

Community involvement

We actively participate in Legal Profession Development for the benefit of the community.

A little more about us

Read about our 21 years in law.

themed object
LITIGATORS, NEGOTIATORS, CONVEYANCERS and ADMINISTRATORS OF ESTATES
get in touch

Buying or Selling a House?

 

CONVEYANCING
What is conveyancing? Who is a conveyancer?
Who appoints a conveyancer?
Why do you need a conveyancer?
The process of conveying Costs involved

What is Conveyancing?
Conveyancing is the legal process of obtaining registered and lawful ownership of fixed property, including improved and unimproved land, houses, farms, flats ‹sectional titles›, as well as registration of bonds and other rights to fixed properties including servitudes, usufructs and the like. It entails the transfer process from the date the deed of sale is signed to the date of payment of finances and delivery of the deeds.
Who is a conveyancer?
A conveyancer is an attorney specially qualified to deal with such property transactions. Requirements for qualification include admission as an attorney, attending training courses, passing an extensive practical examination and admission as conveyancer by the High Court.
Who appoints a conveyancer?
In South Africa the seller, in the case of property transfers, and the mortgagee, ‹bank› in the case of bonds, customarily appoint the conveyancer for a transaction. The parties can however agree to the contrary and many banks allow the mortgagor a conveyancer of his choice. The transferring attorney can be the same conveyancer, in which event it may have significant time and cost advantages for both seller and purchaser.
Why do you need a conveyancer?
Purchasing property is of the larger transaction types a person enters into. A suitably qualified professional person ‹or even persons› should advise on the nature of the transaction. South African law requires conveyancers to attend to property transfers to safeguard the integrity of the South African land ownership system, which is regarded by some as one of the best in the world.
The process of conveying ownership in fixed property
Up
The sale
Property can only be sold by way of a written deed of sale signed by both the purchaser and seller, as well as their spouses if married in community of property. An oral contract for the sale or mortgage of fixed property is invalid. If the property is owned in a corporate such as a Company or Close Corporation, the transaction could be structured as a sale of shares. If it is in a Trust a resignation of trustees and appointment of new trustees might be possible ‹depending on the purpose of the trust and the content of the Trust Deed.› It is a good idea to get advice and input on the structure of the transaction.
The deed of sale must be carefully drafted and read to ensure that it accurately reflects the parties’ full agreement especially with regard to the amount payable, the method of payment, all verbal promises made by the seller or his estate agent, the incorporation of all special conditions to suit the parties' particular needs and the time of the purchaser’s physical occupation of the property, which may coincide with registration of transfer.
The seller must usually provide an Electrical Installation Compliance Certificate in terms of the applicable occupation and health safety laws. The parties may agree that the purchaser has this duty. These laws do not necessarily cover the situation where the sale involves a company, close corporation or trust and the shares are sold or the trustees are changed. It would be a good idea for the buyer of such shares or members interest or the prospective new trustees to insist that the deed of sale or other agreement used, includes a clause dealing with the Electrical Installation Compliance Certificate responsibility. Speak to your conveyancer for proper advice.
If physical occupation and transfer do not coincide, the deed of sale must provide for occupational rental payable between the dates of occupation and transfer. Risk in the property also only passes from the purchaser to the seller on registration unless otherwise agreed in the deed of sale. This must be borne in mind when arranging insurance on the property.
If the sale is subject to the purchaser obtaining a bond, this must be specified in the deed of sale. The minimum amount of the loan the purchaser must obtain to be able to afford the property, must be specified. The same applies to the period within which bond approval must be obtained to avoid the deal being delayed indefinitely. The deed of sale should also specify that if the purchaser is unable to obtain the required bond in time the sale lapses. Any amounts payable by the purchaser in this event should also be specified.
Estate agents have their own deeds of sale, although an attorney can draft one specifically suited to the needs of the parties concerned.
The Conveyance or transfer of ownership
After completion of the deed of sale, a conveyancer must effect registration in the deeds office. This is a time consuming and complex process. Upon receipt of the deed of sale, the conveyancer must obtain from deeds office records the particulars of the property and any bonds thereover as well as any possible legal objections to passing transfer. The conveyancer must also obtain the title deed of the property ‹which is mostly in possession of the seller’s bondholder›. Then the documents are drawn.
The parties will be required to sign the following documents:
Power of Attorney signed by the seller to authorise the conveyancer to attend to the transfer on his behalf;
Transfer Duty and Valued Added Tax Declarations signed by both seller and purchaser for the purposes of the Receiver of Revenue;
Affidavits regarding marital status and solvency; Mortgage bond documents.
Then the conveyancer collects the costs, pays the local authority for a municipal valuation and rates clearance in the case of conventional erven or outstanding levies to the body corporate of a sectional title scheme and obtains a transfer duty receipt or exemption from the Receiver of Revenue. Upon receipt of all the documentation the conveyancer lodges it, together with the documents of the attorneys registering the cancellation of the sellers bond and the purchasers bond, in the Deeds Office for examination. The Electrical Compliance Certificate should be obtained to be handed to the buyer.
The Deeds Office
This is the public office where records of property ownership and related transactions are kept. There are different deeds offices for different regions.
Once the conveyancer is satisfied that all the legal requirements have been met, the deed of transfer, bond and supporting documentation must be lodged at the deeds office for the region in which the property is situate. This will not be necessary if the transaction was coached in the form of a sale of shares or members interest in a company or close corporation. Then only the mortgage bond ‹if any› goes through the Deeds Office process. The transfer of the shares or members interest will go through the offices of the Registrar of Companies and Close Corporations, now known as CIPRO.
The deeds office staff then begin a process of examination of the documents. They also examine the records of the purchaser, the seller and the property to ensure that there are no legal impediments against the proposed transfer. This process takes approximately two weeks, depending on the deeds office's work load and the availability of staff. Any queries the examiners may have must be addressed and should they rule that the documentation is not in order, the documentation will be rejected. The documents must then be rectified and relodged whereupon the process starts anew.
Once the examiners are satisfied that the documents are in order for registration, the documents are made available for registration. Simultaneously with registration the finances are exchanged between the conveyancers representing the respective parties. Only at this stage is the purchase price, estate agents commission, cancellation costs in respect of the sellers bond, etc. paid out.
Thereafter the documents are numbered, checked and microfilmed and returned to the conveyancer. These processes take approximately four to six weeks, depending on the workload of the deeds office and staff availability.
Costs involved Up
Most standard deeds of sale provide for the purchaser to pay the costs of transfer. Similarly, most banks require the mortgagor ‹borrower› to pay the costs attendant on bond registration and cancellation. These costs include the following:
Transfer Duty or Value Added Tax
If the seller is a registered vendor in respect of Value Added Tax for the purpose of selling immovable property, Value Added Tax to the value of 14% of the purchase price will be payable by the seller on registration. In other cases transfer duty will be payable at a rate of 8% for companies, close corporations and trusts. Presently residential exemption is up to R500 000 for natural persons or 5% on the amount of the purchase price exceeding R500 000 up till R1million. For amounts above R1million it is R25 000 plus 8% on amounts exceeding R1million in the case of natural persons. Exemptions from transfer duty may be granted in the cases of low cost housing, government, ecclesiastical, educational and charitable institutions and transfers in terms of the laws of succession. The rate of tax payable often changes and it is a good idea to check that no fiscal amendments have affected the rates since this page was updated.
Here again the structure of the transaction could influence the tax payable. For instance if an immovable property on which Value Added Tax ‹VAT›is payable and which is a enterprize conducting business, is sold by a registered VAT Vendor to registered VAT Vendor, that property or so much of it as is utilized for the going concern could be zero rated by proper wording in an agreement. This means that no tax is payable on the transaction ‹or to be technically correct, VAT is paid at 0%›
Rates and Local Authority Taxes
All rates and taxes, as well as arrear service charges, payable to the local authority in the case of property falling inside municipal boundaries must be paid up to the end of the current rates year ‹30 June› to obtain clearance for transfer. All levies payable to bodies corporate in sectional title schemes must also be paid or secured to the satisfaction of the body corporate.
Conveyancers Fee
The conveyancers fee is calculated on a sliding scale based on the purchase price in the case of property transfers or the amount of a bond, or a prescribed tariff in other cases. The tariff is a guideline and the client is entitled to negotiate a fee with the conveyancer.
Various expenses
Depending on the nature of the transaction, the marital status and solvency of the parties and conditions imposed against the property a number of additional expenses may be incurred. These include valuation fees, clearance fees, inspection fees, postages and petties. Stamp duties are no longer payable on mortgage bonds.

Logo
 
 
 
 
   
 
 
 
 
 
   
 
   
 
   
 
   
 
  Up
 

You can view our Matrimonial Law pages by clicking  here

slide up button