The South African residential property market is increasingly showing favourable returns for foreign investors.
In light of the above, questions arise on the requirements governing foreigners and the purchase of property in South Africa and the legal requirements and financial aspects that may arise.
READ: What to expect when selling your home to foreign buyers
Conveyancing and Property Law team at Abrahams & Gross explain the laws governing foreigners and the purchase of property in SA.
Legal requirements: Capacity
According to the Immigration Act 23 of 2002, a foreigner is described as someone who is not a South African resident. It is important to note that while foreigners may purchase property in South Africa, this does not automatically grant a foreigner unrestricted access into South Africa. A foreigner will still need to comply with the Immigration Act insofar as obtaining a valid Visa, work or residence permit and be in possession of a valid Passport. This in turn, is also in line with the requirements of the Financial Intelligence Centre Act which requires all clients information and identity to be verified. In the event that a foreigner is not in possession of a valid Passport or Visa, a foreigner may be precluded from purchasing property in South Africa.
In the event that a Foreign Purchaser would like to purchase property in the name of a foreign company, as opposed to in their individual capacity, it is important to note that this company will need to be registered as a foreign external company in terms of the requirements of the Companies Act 71 of 2008 in South Africa.
Adherence to the above legal requirements are important, and the Act strictly prohibits a Conveyancing Attorney from passing transfer of an immovable property into the name of a foreigner who has not legally complied with the above.
Legal requirements: Signing the transfer documents
Once an Agreement of Sale has been entered into, and the purchase price has been secured, the Foreign Purchaser will need to sign various Transfer and Mortgage Bond Documentation in order for the transfer to proceed. In the event that a Foreign Purchaser is not in South Africa, it is important to note that the Foreign Purchaser will need to sign the documentation in the presence of an Official at a South African Embassy, or at a Notary Public, which may incur additional costs. The above process is important in order to properly attest to the foreign purchasers identity.
Finances
A foreign purchaser may finance the purchase of the property using financing such as a Mortgage Bond Application, or through a cash payment from a South African bank account or an off-shore bank account. It is important to note that it is not possible to mortgage a South African property through a foreign Bank. In this regard, it is important to liaise with a trusted Conveyancing Attorney, who will attend to the above and have the knowledge and resources to obtain the necessary deal receipt required, which is required in the event that the Foreign Purchaser in future decides to sell the property, as this deal receipt will be required for the purposes of repatriation of the funds oversees.
In terms of the costs that a foreign purchaser may incur, it is important to note that a Foreign Purchaser will be still be liable to pay Transfer Duty to SARS, in the event that the property is purchased for more than R1,100.000.00 (One Million One Hundred Thousand Rand). It is also important to note that a Foreign Purchaser will be liable for Transferring Attorney costs and Mortgage Bond Registration costs (if applicable), which is calculated based on the purchase price of the property.
As a foreign investor, it is important to use a reputable conveyancing attorneys when purchasing property in South Africa, who are knowledgeable with foreign investment and have the required resources to guide the transfer process accordingly.
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Consult with legal experts before purchasing property as a foreigner
The Conveyancing and Property Law team at Abrahams & Gross are well experienced in assisting foreign nationals purchase property in South Africa. Contact our knowledgeable team for more information.
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