Property Transfer - Let’s break it down
The process of transferring property frequently leaves buyers and sellers alike confused, frustrated and in the dark as to what exactly the sequence of events are to have a property transferred. With the sale agreement signed, surely the hardest part has been taken care of? The reality is that our property regime in South Africa is quite sophisticated and with numerous stakeholders and role players impacted by a transaction, the actual process of the transfer can become quite complex. Accordingly, it is important to understand the procedure and prepare oneself for the steps of the transfer process.
Firstly it is unfortunate that more than often not, the transfer process takes longer than expected often due to technicalities arising or as a result of the complexity of having many stakeholders (multiple attorneys, financial institutions, etc.) involved. A delay by one party can impact the flow of the entire transaction. The upside is that our property system is extremely accurate with special measures taken to verify that all documents are 100% correct and that each and every land purchase is verified and documented by the Registrar of Deeds.
The process can also involve multiple attorneys with these specialists also playing a crucial role in coordinating a speedy registration. Accordingly, choose your attorneys with care as this choice could affect the speed of your transaction.
The transfer of property (conveyancing) includes all the administrative and legal procedures necessary to transfer ownership (and other legal rights) in immovable property from one person to another. A practicing attorney who has passed the National Conveyancer’s exams and has been admitted as a conveyancer of the High Court of South Africa is officially recognised to draft the required specialised documents and deeds that are required for registration in the Deeds Office.
The contract of sale
The transfer process will generally commence with a contract of sale and end with a bond registration and/or the registration of the transfer of the immovable property. In the event that an attorney did not draft the offer to purchase and a standard form is used by the estate agent, it is the responsibility of the estate agent to explain the terms of the contract to the relevant parties and ensure that the contract is validly concluded. The contract of sale must be in writing. Clearly identifying the property being sold, the purchase price and the terms of the payment, and must be signed both by the purchaser and the seller before the transfer process can commerce.
The transferring attorney
The transferring attorney receives the instruction from the client or the estate agent to attend the transfer. Generally, unless the parties agree otherwise, the seller normally nominates the transferring attorney.
Upon receiving the instruction, the transferring attorney will conduct a deeds search on the property to verify that all the property and related information is correct. It may also be necessary to do a company search to verify the directors of the company who is a party in the contract. In order to comply with FICA requirements, the transferring attorney will require the purchaser’s and seller’s details. Accordingly, the following documents will generally be required from all the parties:
The conveyancer will also request the original title deed from the seller or in case where a bond is registered, the bond account number and details of the bond holder to request cancellation figures.
The convayancer will also upon receiving and verifying the above information, institute the following actions:
Rates clearance figures from the local authority
In order to obtain a Rates Clearance Certificate the seller is required to make payment of rates for a period of 3 months in advance. This amount is calculated on an estimate amount calculated over a 24 month period and the Deeds Office will not register any transfer without proof that the rates have been paid. However, if any taxes are owed, the seller is not exonerated and the taxes will still have to be paid by either the seller or the new owner as per their contract of sale. It is worth doing nothing that this can sometimes be a lengthy process to be finalised, depending on the efficiency of the relevant local authority.
Transfer duty or VAT receipts from SARS via e-filing
Transfer duty for natural persons and legal entities are calculated on a sliding scale according to the purchase price of the property and the SARS e-filing system ensure that all the parties are registered and that their taxes are up to date. VAT is payable if the seller is a registered VAT vendor. As a result this process can take some time to be completed and it is essential that all parties provide the correct tax details so the transferring attorney can resolve any tax issues prior to submitting the e-filing applications.
Electric compliance and other compliance certificates from a certified personnel
The seller will usually obtain this certificate but there should always be in a clause in the sale contract that indicates who should obtain it and who bears the costs of the certificates.
Other certificates may be required to be obtained such as gas or electrical fence compliance certificates. Again, the sale contract should address which party is responsible for these certificates and who must carry the associated costs.
Levy clearance certificate from the managing agents/body corporate (sectional title)
This is required where the property is a part of a Sectional Title Scheme to verify that all outstanding levies in respect of the Sectional Title have been paid up to date.
Delivery of registration documents
Upon receipt of the document from the Deeds Office, the transferring attorney will send the title deeds to the bondholder/s for safekeeping. If there is no bond, arrangements will be made with the purchaser to collect the necessary documents or have such sent via registered post.
As is clear from the above, there are a number of steps and processes that must be completed before a transaction can be registered. A good transferring attorney will facilitate the management of the process, but the availability of the required information and the speed of delivery of required documents from third parties are critical to the conclusion of the transfer process. This is where you can assist by ensuring that information provided is complete and assist where possible with the retrieval of the required documents.
Lodgment, preparation, and registration of the deeds at the Deeds Office
Documents for transfer of the property, the bond documents for registration of the new bond and the documents for cancellation of the seller’s bond are linked and lodged at the Deeds Office simultaneously by all the attorneys involved.
It takes a number of days to check all the documentation before it is ready for registration. The conveyancers get an opportunity to correct any mistakes noted by the examiners unless the deeds are rejected. The deeds are prepared for registration and execution.
The transferring attorney will advise all parties of the registration, present guarantees and prepare all the final accounts for the buyer and the seller, subsequently the seller will be paid the purchase price.
For an easy to follow - time indicated - conveyancing schedule, click here to download in PDF format
To find out more about the transfer process, click here to download in PDF format
For an indication of what costs are involved, click here to download in PDF format