CONVEYANCING RESOURCES

Our Conveyancing team is one of the most respected and efficient property departments in Cape Town.

We work with individual buyers and sellers, estate agents, property developers and private property funds.

Useful conveyancing information:

What is conveyancing?

A legal process whereby a person, company, close corporation or trust becomes the registered and lawful owner of immovable property. Conveyancing in South Africa can only be carried out by a licensed conveyancer who is an attorney specialising in property law. The process begins with the Deed of Sale and continues through to the ultimate registration of ownership. The conveyancing process also encompasses the registration of mortgage bonds.

Who appoints the conveyancer?

In South Africa, under common law, the seller has the right to appoint the conveyancer even though it is the purchaser who pays the conveyancer’s fee. Notwithstanding this, the purchaser and/or the estate agent may recommend a conveyancer, and there is nothing preventing the parties from contractually agreeing on using the suggestion. Irrespective of who ends up making the appointment, the conveyancer owes a duty of care to both parties and must fairly represent both parties. Always choose a conveyancer you can trust.

What are the costs involved in buying and selling property?

Often when we attend to property transfers we find that home owners are caught unawares of the extra costs that exist over and above the price paid for the property. These additional costs can be a shock and are often unbudgeted for. Knowing who pays for what in the process is important for both the seller and buyer.

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What is transfer duty?

Transfer Duty is a tax levied on the value of any property acquired by a person by way of transaction or in any other way. No Transfer Duty is levied on properties valued under R1-million and any amount above this will be levied according to a certain percentage, depending on the value of the property. Use our Conveyancing Calculator to work out your Transfer Duty.

Transfer Duty must be paid within 6 months of acquisition of the property, lest the purchaser becomes liable for a penalty fee, payable as 10% per annum on the unpaid duty. Transfer Duty should not be confused with transfer costs, which comprises of costs associated with a property transfer, such as conveyancing fees, bond registration, etc.

What are the conveyancing steps in the property transfer registration process?

Understanding the conveyancing process and ensuring that you have all the necessary documentation ready will ensure that a smooth transfer of the property can take place. Clients often ask us what the conveyancing procedure entails and our attorneys have outlined the eight major steps within the property registration process.

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What compliance certificates do I need when selling my house?

Often when we attend to property transfers we find that home owners are caught unawares of the compliance certificates that are required when selling a house and are subsequently shocked by the associated costs which they did not budget for. Our conveyancers have compiled a detailed summary of the different types of certificates of compliance and explanations as to what is required by law.

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Why do I need a rates clearance certificate?

When selling your property, it is necessary for the conveyancer to get a rates clearance certificate (RCC) from the relevant local authority before transfer can take place. This document certifies that there are no outstanding rates due on the property on the seller’s account.

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What compliance certificates are required when leasing commercial or industrial property?

Compliance certificates are mandatory for any property sale and the rules applied are the same irrespective of the residential or commercial use of the property. However, when leasing commercial property to be used as shops, office space or a factory, fit-outs are often required which may alter the property. Clients often ask whether or not compliance certificates are a legal requirement when any changes are made to the property in terms of electrical, plumbing or gas fit-outs when the said property is being leased.

Our attorneys have summarised the different types of certificates of compliance and explanations as to what is required by law when dealing with leasing of commercial property.

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How long will a property transfer process take?

A client can expect a transfer to take from 6-10 weeks from the time that all suspensive conditions to an agreement of sale (if any) have been fulfilled. Once all these have been fulfilled (eg. bond approval, the sale of another property, etc) a number of steps need to be taken prior to being in a position to transfer that property, such as the cancellation of any existing bonds, obtaining rates clearance certificates from council, SARS applications, obtaining compliance certificates, arranging finance (linking to bond and bond cancellation attorneys) and ultimately lodging in the relevant Deeds Office.

These need to be successfully completed before the property is registered in the new owner’s name and given the external parties involved (i.e. SARS, the local authority, Deeds Office, the seller/purchaser themselves, contractors attending to certificates) it is often difficult to give an exact time frame.

What are the pros and cons of buying property in your personal capacity?

There are four capacities within which it is possible to buy property and each has its own distinct advantages and disadvantages. The options available are to either purchase in your individual capacity, through a trust instrument or in the name of a company or a closed corporation. Our attorneys detail the advantages and disadvantages of purchasing property in one’s personal capacity.

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Should I buy property in a Trust?

A Trust is a legal entity which is created by a founder and which can (amongst other things) purchase and own property. Once a Trust is created, all assets are placed into it by either the founder donating assets to it or by the entity itself purchasing or otherwise acquiring assets. Our attorneys outline the benefits and drawbacks of this type of purchase.

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What are the pros and cons of buying property through a legal entity?

It is possible to purchase immovable property in the name of a legal entity, such as a closed corporation or a private company. This transfer process is no different except for a few minor differences and additions in the transfer documentation. Most importantly, a resolution must be signed by all the members or directors of the legal entity authorising an individual to sign the offer to purchase and subsequent transfer documents on behalf of such entity.

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Can foreigners own property in South Africa?

Foreigners may purchase and own immovable property in South Africa without any restrictions, as foreigners are generally subject to the same laws as South African nationals. The only foreigners disqualified from owning property in South Africa are foreigners that are here illegally.

It is thus possible for a foreign individual to own property individually, jointly or in undivided shares. Foreign companies and trusts are also permitted to own property in South Africa, provided that they are registered in South Africa as an external company.

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Is buying property on auction a good idea?

Auction sales are on the rise in South Africa and have grown by a huge margin over the past few years. However, despite the trend, it would be wise to realise that buying a property on auction does not necessarily mean that you will always be getting a good bargain!

Auctions are regulated by section 45 of the Consumer Protection Act 68 of 2008 and it is important to know the rules of the auction game long before you decide to get involved.

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What to do if you discover defects before taking property transfer

What happens when a buyer takes occupation of a property prior to transfer and then discovers defects that he didn’t know about? He then claims that the seller did not disclose these defects prior to the sale and demands a reduction in the purchase price. The seller denies this and refuses to agree to a reduction in price. May the buyer instruct the bond attorneys to suspend the bond, and thereby terminate the deal?

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The voetstoots clause and what it means for property buyers and sellers

A well-known term that every buyer and seller of immovable property may have encountered is that of the voetstoots clause. The term originates from Dutch and translates directly to ‘with the shove of a foot’. What the term in effect means is that the product, in this context the immovable property, is sold “as is” or “as it stands”.

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How is immovable property dealt with in a divorce?

In respect of immovable property, it is important to note that the divorce order merely records that the party/parties are entitled to a full or half share in the immovable property. Thereafter, transfer of the applicable share in terms of the divorce order, must be registered by a conveyancer in the office of the Registrar of Deeds.

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What if a property owner dies before registration?

Purchasing a house is usually quite stressful and in the event of the owner of the property passing away before registration of the property into the name of the purchaser, the stress doubles. However, the death of the owner of property does not cause the Deed of Sale to be invalid or to lapse. The executor in the owner’s estate is obliged to give transfer to the purchaser if the seller and purchaser entered into a binding, valid contract and the estate is solvent. The executor must still obtain a certificate by the Master of the High Court that no objection to the transfer of the property exists, but the requirements by the Master in connection with a sale by the executor can obviously not apply to a sale by a deceased prior to his death and the certificate will usually be issued.