Conveyancing

Sascha was admitted as an Attorney and Conveyancer in 2005. Having started her career in property law while completing her articles she has more than 15 years’ experience in the property law field.

In addition, Sascha is also admitted as a Notary Public ensuring that all our clients received the full spectrum of property related services without the need to outsource and thereby incurring additional costs.

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What is conveyancing and which services do we provide?

Conveyancing refers to the branch of law relating to property. Most commonly the transfer of property from a seller to a buyer.

With every sale of property a new Deed of Transfer has to be drafted and lodged at the relevant Deeds Office.

In South Africa conveyancing can only be done by an admitted Conveyancer.

We assist our clients with the entire process, from drafting the offer to purchase & transfer documents, obtaining the necessary clearance certificate’s, interaction with SARS, the banks and other attorneys involved in the transaction.

In this regard we assist with the following:

Agreements

Offer to purchase/Sale of property

In South Africa the transfer of property can only take place where there is an agreement between the owner of the property (seller) and the purchaser which has been reduced to writing and signed by all parties including witnesses.

Loan agreements

As we are not on the banks panel, here we assist with 3rd party loan agreements.

We can assist with drafting the contract between borrower and lender detailing the conditions of the loan as well as registration of the loan against the property of the borrower at the relevant Deeds Office.

Lease agreement – residential and commercial

Drafting of the contractual arrangement between lessor and lessee for the use of the asset of the lessor for residential or business use.

Sale of commercial property

We assist with the negotiation and drafting of the contract for sale of commercial property ensuring compliance with relevant legislation, such as the Companies Act, 2008 and Competition Commission and Deeds Registries Act. Then facilitation of the registration of the transfer at the relevant Deeds Office.

Sale of going concern

Assisting with the drafting of the contract ensuring compliance with the requirements of Sars and registration of the transfer at the relevant Deeds Office.

Transfer of property by change in directors of a (Pty) Ltd or members of a CC

In some instances, a change in Directors or Members interest can result in change in ownership of property. We assist with the necessary contact as well as changes with CIPC and payment of transfer duty / VAT with SARS.

Transfer of property

Full title (Erf) – a full title property is one which the purchaser takes ownership of the land and everything which is built on it.

Sectional Title – ownership of a unit with in a complex or development. Here the purchaser will own the unit but the land surrounding the unit is common property, unless the purchaser has been provided exclusive use of such area either by the body corporate or notarial deed.

Commercial property – this refers to buildings or land intended to generate profit, either from profit or capital gain.

Sale in execution / Sheriff auction – Property sold via sheriff auction as a result of a court order obtained by a creditor such as the bank, body corporate or home owners association to name a few.

Deceased estate – transfer of property from the estate of the deceased to a beneficiary or third party on the instruction of the executor.

Insolvent estate – transfer of property on the instruction of the trustee of the insolvent estate.

Divorce – transfer of property in terms of the divorce order and settlement agreement.

Consolidation of property – Application to the Deeds Office for the consolidation for 2 or more pieces of land to be thereafter consolidated into a single unit of land.

Notarial Services relating to property

Notarial Bonds – this refers to a bond that is registered over movable property that a debtor has put up as security, which bond is registered at the relevant Deeds Office.

Servitudes – registration of servitudes whether Praedial (one which a person has due to ownership in a specific property) or Personal (in favour of a specific person).

Notarial tie – Where two properties are tied by means of a notarial-tie agreement and registered at the relevant Deeds Office.

Section 68(1) applications – Where the title deed to a property has been lost or destroyed and a copy thereof is required in order to replace the original, a Section 68(1) application needs to be signed before a notary public and lodged at the relevant Deeds Office.

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Frequently Asked Questions

How can buyers and sellers help facilitate a smooth transaction?

  • Sellers will be charged an early termination penalty fee by their bond holder, should you not give the bank 90 days’ notice of your intention to cancel your bond.
  • Make sure you have your FICA documents in order. Proof of residence should not be older than 3 months.
  • Before signing an Offer to Purchase (OTP) ensure you get a copy of the agreement from your real estate agent and understand the contents thereof.
  • Ensure that you have an income tax number where you earn the required annual income and that your tax is up to date.
  • Purchaser’s can approach a bond originator / bank in order to determine the amount of the bond they will qualify for before making an offer to purchase.
  • As purchaser you should enquire about bond and transfer fees, this means there are no surprises.
  • Sellers can obtain the compliance certificates, so they are ready when requested.
  • Sellers should make certain that their building plans are updated, where applicable.

What does the transfer process look like?

I looked at homes with or without an agent, signed an offer to purchase and received bond finance. The bank pays the seller and now the house is mine, right? Wrong

At transfer can take up to 3 months to finalize.

Here are the steps involved:

  1. Receive Instruction – Send out initial letters diaries file until bond is granted (usually purchaser has 30 days to get bond)
  2. Request cancellation figures from bond holder (usually 5 working days for response, a further 3 – 5 working days until cancellation attorney receives instruction).
  3. Request rates clearance figures from City Council & levy clearance from the relevant HOA or body corporate.
  4. Receive cancellation figures/guarantee requirements and copy of title deed from cancellation attorney
  5. Contact purchasers bond attorney. Request guarantees. Guarantees are only sent once the bond attorney has signed the client and received an ok from the bank (this can take up to a month)
  6. Draft preliminary documents (this can only be done if clients have provided necessary FICA as requested in initial letters). Then arrange for signature of transfer documents.
  7. Bond attorney to send guarantees to transferring attorney and transferring attorney to send same to cancellation attorney.
  8. Receive costs from Purchaser. Pay SARS. Rates Figures received and payment requested from seller.
  9. TDR received from Sars (this is issued 1 working day after payment is made). RCC received (7 working days after payment) and Levey clearance certificate.
  10. Once we have City Council consent, HOA consent/levy clearance and transfer duty receipt, we arrange lodgement.
  11. Submit to Deeds Office for registration. (7 – 10 working days, this varies in each Deeds Office).

What can you expect from your conveyancer?

The Conveyancer should:

  • protect the interest of his client’s. Although the Conveyancer is usually appointed by the seller, the Conveyancer acts in the best interest of both seller & purchaser. Should a dispute that results in litigation arise the Conveyancer needs to advise both parties to obtain alternate legal counsel;
  • inform the parties of the conveyancing procedure and keep the them informed of the progress of the transaction;
  • advise on the content of the Offer to Purchase, especially regarding suspensive conditions;
  • in respect of the cancellation of the sellers bond advise on, any penalties, notice periods and other administrative charges which may affect the settlement figure;
  • do everything in his power to register the transaction as quickly and efficiently as possible;
  • ensure in as far as possible that the transfer is not delayed;
  • prepare the deeds for lodgement with care, to minimise the risk of rejection of the documentation by the Deeds Office;
  • inform the parties of registration of the transfer on the day of registration;
  • once registered provide the parties with confirmation of registration, final statement of account and proof of payment (where applicable).

What do conveyancing attorneys do?

Typically there are 3 conveyancing attorneys involved in a transaction for the transfer of property from the seller to the purchaser.

These conveyancing attorneys are known as the transferring attorney, bond attorney and bond cancellation attorney.

The transferring attorney is the attorney that attends to the registration of the property at the Deeds Office into the name of the purchaser. This attorney is in charge of the transaction and is responsible for communicating with the bond attorney, bond cancellation attorney, banks, SARS, relevant local authority and bond corporate/homeowner’s association.

The bond attorney is instructed by the bank to attend to the registration of the purchaser’s bond at the Deeds Office.

The bond cancellation attorney is also appointed by the bank and is responsible for the registration of the cancellation of the sellers existing bond facility at the Deeds Office.

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Fee: What does it cost and who pays what?

Transfer & bond registration fees are set by the Legal Practice Council. Transfer fees are calculated according to the purchase price of the property and bond fees according to the amount of the bond granted.

In addition to the attorney’s fee, disbursements (deed office fee, rates clearance agent fee, courier fee, document generation charge), postage & petties and transfer duty / VAT (SARS) are also included in the account.

The purchaser is responsible for transfer and bond registration fees.

The seller is responsible for settling his bond, bond cancellation fees, estate agents commission, the rates clearance figures, levy clearance figures (if applicable) (in some cases levy figures are pro-rata’d between purchaser and seller), electrical certificate, gas installation certificate (if applicable) and electric fence certificate (if applicable)

The purchaser’s bank may make the bond grant subject to approved house plans from council, if the seller does not have these, then he/she will also be responsible for the cost of obtaining these.

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