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Ins and outs of property transfers

29 Apr 2014

All the documents have been signed and the property has been sold – what now? 

The transfer process is required to satisfy the necessary criteria of several regulatory institutions such as the Financial Intelligence Centre Act (FICA), the Transfer Duty Act and the Value Added Tax Act for the South African Revenue Service (SARS) and the Municipal Property Rates Act.

When it comes to selling a property, one vital aspect that the seller needs to consider is selecting the right attorney for the job. This is according to Adrian Goslett, CEO of RE/MAX of Southern Africa, who says choosing the right attorney with specific experience in the transferring of property can expedite the process and make sure that it happens within the shortest possible time. 

He says during the transfer and registration process, it is common practice that three different conveyancers are used, namely the bond attorney, the bond cancellation attorney and lastly, the transferring attorney. 

Goslett explains that each of the attorneys has a specific role that they play in the process. For example, he says the bond attorney acts on behalf of the bank or financial institution that is providing the finance to the buyer. Once the buyer has been approved for finance, the bond attorney is responsible for registering the bond in the buyer’s name, he says. 

He adds that the role of a bond cancellation attorney is to cancel the bond of the current bondholder on the property. The buyer’s financial provider will issue a guarantee for the outstanding bond amount. Once this has happened, the bond cancellation attorney will proceed to cancel the current bond on the property, which is in the seller’s name. 

In most cases, the financial institution will appoint the bond and cancellation attorneys; however, it is normally the seller that is able to nominate the transferring attorney. The transferring attorney handles the final stage and co-ordinates the simultaneous lodgement of the deeds for transferring the property from the seller’s name into the buyer’s name. In some instances it is possible to nominate the transferring attorney to act in the capacity of one of the other roles as well, which will further speed up the process. 

Goslett says it is rare that there be too many issues with the transfer process, which is generally a fairly smooth procedure, provided that the selected attorney has conveyancing experience. He says the majority of attorneys will be able to provide the service; however, not all will have vast amounts of experience in the conveyancing field. 

He says it is always advisable to use an attorney that handles conveyancing on a daily basis as it is a complicated series of tasks that require in-depth knowledge around the process. 

As there is a recommended rate for the legal fees charged for the transferring process, which is based on the value of the property and should be fairly similar from one firm to the next, it makes sense to rather find the best attorney for the job. Extensive experience in this area of the law for which you require their services is a critical element, however, it is also important that the seller is comfortable with their choice and trusts their attorney. Working with a reputable, experienced attorney will ensure that the process is as quick and hassle-free as possible. 

“On average, the process can take around three months, starting from the date of sale and ending with the property being registered in the new owner’s name. That said, there are a few external factors that could postpone the process. These could include obtaining clearance certificates or the fulfilment of a stipulated condition in the contract.” 

According to South African law, a property can only be transferred once all municipal charges and associated costs have been paid in full to the relevant parties, says Goslett. Once this is done, he says a rates clearance certificate will be issued by the local council. He says the seller may be required to pay a few months in advance to obtain the certificate, however, any credit on the account at the date of transfer will be refunded. 

Goslett says the transfer process is required to satisfy the necessary criteria of several regulatory institutions such as the Financial Intelligence Centre Act (FICA), the Transfer Duty Act and the Value Added Tax Act for the South African Revenue Service (SARS) and the Municipal Property Rates Act. 

According to Goslett, buyers can prepare for the property transfer by getting the following documentation in order: 

1. A proof of address (not older than three months)

2. A certified copy of their identity document

3. Their income tax number

4. Declaration in respect of marital and solvency status

5. Particulars concerning the identity of the attorney transferring the buyer’s property if the buyer is utilising the proceeds to pay for his purchase

6. Particulars of the bond granted

These documents will be needed to meet the FICA requirements. 

Sellers can also assist in accelerating the transfer process by having the following documents in order:

1. Declaration in respect of marital and solvency status

2. Particulars of bond holder (account number)

3. Valid electrical wiring certificate

4. Valid electrical fencing compliance certificates (if relevant)

5. Valid gas compliance certificates (if relevant)

6. VAT declaration (if applicable)

Goslett says selecting the right attorney and having all the necessary documentation at hand before the start of the process will ensure that everything progresses without incident. 

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