Conveyancing and Property Transfers

 

 

 

The key legal aspects of buying or selling property in South Africa

  • The Contract A written and signed sales agreement is legally required, detailing the price, payment terms, property description, and any conditions. The Consumer Protection Act (CPA) offers certain protections to buyers, especially in transactions with developers.
  • Ownership and Transfer The title deed proves property ownership. Conveyancing attorneys manage the transfer process, ensuring legal compliance and registering the transfer at the Deeds Office.
  • Financial Aspects The buyer pays transfer duty (a tax) to SARS. The buyer also typically pays conveyancing fees. Bond registration costs apply if financing the purchase. The seller must ensure property rates and taxes are up to date.
  • Other Considerations Properties are generally sold "voetstoots" (as-is), but sellers must disclose known defects. Compliance certificates (e.g., electrical) are usually required. It's important to check for any property encumbrances. Both buyer and seller must comply with FICA regulations.
  • Legal Assistance Using a qualified conveyancing attorney is highly recommended for expert guidance and to protect your interests. Other legal professionals may be needed for complex transactions.

If you're dissatisfied with the service you've received from your conveyancer in South Africa, you have several options.  First, try discussing your concerns directly with the conveyancer to see if the issues can be resolved.

If that doesn't work, you can lodge a formal complaint with the Legal Practice Council (LPC), the governing body for attorneys in South Africa.  Be sure to document your concerns clearly and provide any supporting evidence.

If you are the buyer, and the conveyancer was appointed by the seller, and you are not satisfied with their service, you can request a change of conveyancer.  However, this requires the seller's agreement. If the seller refuses, you may need to negotiate or seek legal advice from Aucamp Attorneys to discuss your options.

A transfer attorney handles the legal process of transferring ownership of immovable property (real estate).  Their responsibilities include drafting all necessary documents, communicating with all parties involved in the transaction (buyer, seller, banks, etc.), and registering the transfer at the Deeds Office.
 

A title deed is the official legal document proving ownership of a property in South Africa. It includes details like the property's size, location, and any restrictions on its use.  A conveyancer, a specialized attorney, manages the transfer of this title deed from the seller to the buyer during a property transaction.  This involves ensuring all legal requirements are met and correctly registering the change of ownership at the Deeds Office.  Essentially, the conveyancer oversees the entire legal process of transferring property ownership, including checking for any legal issues affecting the property and ensuring all paperwork is correctly completed.

In South Africa, the seller of the property typically chooses the conveyancing attorney. This practice stems from the seller's legal responsibility to ensure the property's title deed is legally transferred to the buyer.  By selecting the conveyancer, the seller takes ownership of fulfilling this obligation, guaranteeing the property is transferred free of encumbrances and according to the sale agreement's terms

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The Role of a Conveyancing Attorney in South Africa

In South Africa, the transfer of property ownership is a specialized legal process known as conveyancing. Only qualified conveyancers, admitted attorneys who have passed specialized conveyancing examinations and are admitted by the High Court, are authorized to handle this process. This ensures the integrity and security of South Africa's robust land registration system.

What is a Conveyancing Attorney?

A conveyancing attorney, sometimes called a "transfer attorney," plays a crucial role in property transactions. While typically appointed by the seller, the buyer usually pays the conveyancing fees. The conveyancer's primary duty is to act in the best interests of both the buyer and the seller, ensuring all terms and conditions of the sale agreement are met and the transfer is legally sound.

Key Duties and Responsibilities of a Conveyancing Attorney

A conveyancing attorney's responsibilities extend far beyond simply drawing up a contract. They manage the entire transfer process, overseeing numerous activities and liaising with various parties. Their key duties include

  • Facilitating the Transfer Managing all legal aspects of transferring ownership from the seller to the buyer.
  • Document Preparation and Review Preparing, reviewing, and ensuring the accuracy of all legal documents, including the deed of sale, transfer deed, and other necessary forms.
  • Title Deed Search Conducting thorough searches at the Deeds Office to confirm ownership, identify any existing bonds, liens, or other encumbrances on the property, and ensure there are no disputes regarding the title.
  • Financial Management Handling all financial aspects of the transaction, including the collection and disbursement of funds, ensuring the seller receives the proceeds after registration and accounting for all costs.
  • Obtaining Clearance Certificates Obtaining necessary clearance certificates from municipalities (rates and taxes) and homeowners' associations or body corporates (levies) to ensure there are no outstanding debts on the property.
  • Liaising with Parties Communicating with all parties involved, including the buyer, seller, estate agents, bond attorneys, and financial institutions.
  • SARS Compliance Managing transfer duty payments to the South African Revenue Service (SARS) and ensuring compliance with all tax requirements. This includes obtaining necessary tax information from both buyer and seller.
  • Bond Registration and Cancellation Coordinating with bond attorneys to register new mortgage bonds for the buyer and cancel existing bonds for the seller.
  • Protecting Client Interests Acting as a legal expert to protect their clients' interests and ensuring the transaction is legally sound and enforceable.
  • Advising Clients Providing legal advice to both buyer and seller regarding the terms of the agreement and the conveyancing process.

Benefits of Using a Conveyancing Attorney

  • Mitigation of Legal Risks A conveyancer's expertise protects clients from potential claims, disputes, and legal issues related to property ownership.
  • Ensuring Legal Validity A conveyancer ensures the legal validity of the transfer and that all documentation is accurate and compliant with the law.
  • Protection of Rights and Interests A conveyancer safeguards the rights and interests of both the buyer and seller throughout the process.
  • Smooth and Efficient Transfer A conveyancer manages the complex administrative and legal procedures, ensuring a smooth and efficient transfer.
  • Expert Guidance A conveyancer provides expert advice and guidance throughout the transaction.

Types of Conveyancing Attorneys Involved

In a typical property transaction, there may be three conveyancing attorneys involved

  • Transferring Attorney Appointed by the seller, they handle the transfer of ownership to the buyer.
  • Registering (Bond) Attorneys Appointed by the buyer's bank, they register the new mortgage bond.
  • Cancellation Attorneys Appointed by the seller's bank, they cancel the existing mortgage bond on the property.

What to Expect from Your Conveyancer

  • Keep you informed about the conveyancing procedure and progress of the transaction.
  • Advise you on the terms of the offer to purchase and any suspensive conditions.
  • Advise you on bond cancellation procedures and associated costs.
  • Obtain your instructions before issuing any guarantees.
  • Strive to register the transfer on or as close as possible to the agreed-upon date.
  • Explain and have you sign all necessary documentation.
  • Prepare accurate documentation to minimize the risk of rejection by the Deeds Office.
  • Inform you of the transfer on the day of registration.
  • Provide a financial account of the transaction shortly after registration.

Our Expertise

We have a specialized and experienced conveyancing team handling both residential and commercial properties. We offer expert advice on complex legal issues within the property industry and represent a diverse client base, including developers, lenders, investment banks, real estate trusts, and private clients.

Contact us today for a consultation to discuss your conveyancing needs.