The word conveyancing is used to describe the administrative and legal procedures necessary to transfer ownership (and other rights) in immovable property from one person to another.
In terms of the laws in South Africa immovable property (vacant land, houses, flats, farms, buildings) can be privately owned. Thousands of property transactions take place in our country every day.
People buy land to live on, to produce crops on, to conduct business on, or simply to keep as an investment.
All dealings with ownership of land in South Africa are recorded in a public office known as the ‘deeds office’. The deeds office keeps information about the individual pieces of land in our country.
The computer records of the deeds office will show, for example, who the owner of a particular property is, when he or she acquired it and (if it was purchased) how much was paid for it.
A conveyancer is a practising attorney who specialises in the preparation of deeds and documents which by law or custom are registerable in a deeds registry.
The Republic of South Africa's present land registration system is based on the Land Survey Act (Land Survey Act 8 of 1997) and the Deeds Registries Act (Act 47 of 1937) (the Act).
This system is dependent on the integrity and the correct performance of the functions of conveyancers and the staff of deeds registries.
Section 15A(I) of the Act provides that certain deeds and documents must be prepared and signed by a conveyancer who accepts responsibility for the correctness and accuracy of certain facts set out in such deeds or documents.
Conveyancers must also have proper knowledge of the more than 390 pieces of legislation governing land registration as well as the common law, conference resolutions, dating back as far as 1938 and all relevant Chief Registrar's Circulars.
Three types of conveyancing attorneys
In a ‘typical’ sale, namely a transfer that results from a sale that was brought about by the efforts of an estate agent, there are three conveyancing attorneys involved in the property buying/selling process:
They transfer the property from the seller to the buyer. They represent the seller and are appointed by the seller.
Registering (or Bond) Attorneys
They register the bond over the property in favour of the bank that is financing the purchase of the property. They represent the buyer and the bank granting the buyer's home loan. Appointed by the bank granting the buyer's home loan.
They cancel the seller's existing home loan on the property. They represent the bank cancelling the seller's home loan. Appointed by the bank cancelling the seller's bond.
What to expect from your conveyancer
In a typical registration and transfer process the attorney is involved in more than 50 activities, involving up to 12 parties, before the transaction can be completed.
The conveyancer has to deal with all the parties involved and he assumes responsibility for the collection and payment of all amounts due.
After an agreement of sale has been entered into, a conveyancer is appointed and instructions are sent to him by the estate agent.
These include the names of both the buyer and the seller, a copy of the agreement of sale, and the identity numbers and marital status of the buyer and seller.
The conveyancer then drafts the following documents for signature:
• A power of attorney to pass transfer – This must be signed by the seller because it allows the conveyancer to transfer the property on his or her behalf into the name of the purchaser;
• Affidavits and further documents – The buyer and seller must sign an affidavit in which they confirm their identity, marital status, solvency as well as a FICA affidavit and where applicable an affidavit regarding no identity document will have to be signed by either party who has lost their identity document
• Transfer duty and value added tax (VAT) declaration – The buyer and seller must sign this to confirm the purchase price, which is conveyed to the Receiver of Revenue for the calculation of transfer duty (normally paid by the vendor). VAT is applicable only if the seller is VAT-registered, in which case he must sign a VAT declaration. If VAT is payable, no transfer duty is payable.
• Mortgage (bond) documents – If you’re obtaining a mortgage from a financial institution, the lender will require you to submit your identity document, marriage certificate and, if applicable, ante nuptial contract in order for his own conveyancer to draw up the necessary documentation.
The conveyancer should then do the following:
• Contact the seller’s mortgage holder (bondholder), if there is one, to request the title deed and mortgage cancellation figures from his attorneys (lawyers) or conveyancers (note that there can be three conveyancers involved in a purchase).
• Request written confirmation of the buyer’s mortgage from the relevant financial institution in the form of a guarantee;
• Ask the seller to pay any outstanding taxes, utility bills or levies so that a clearance certificate can be obtained from the local municipality (or managing agent in the case of a sectional title scheme) and lodged at the Deeds Office. A clearance certificate is usually valid for three months.
• Receipt of guarantees – on receipt of the requested guarantees from the buyer’s financial institution, the contents thereof must be properly checked to see if everything is correct. The original guarantee in favour of the existing bondholder (seller’s bank) must be forwarded to the bond holder’s attorneys (bond cancellation attorneys). The original guarantee for the balance of the purchase price will remain in the file of the transfer attorney.
• Draft the transfer documents and the new title deed and forward a copy thereof to the bond registration attorneys to enable them to draw up their bond documents accordingly, if any.
The buyer and seller must then sign the transfer documents and the buyer must pay the transfer costs. The Receiver of Revenue will issue a receipt for the transfer duty.
The seller must consent to the cancellation of his mortgage bond (if applicable) and the new deed is lodged at the Deeds Office, where it is registered 8 to 14 days later.
The seller’s mortgage bond is cancelled and the balance repaid (less any commission or penalties that apply).
The Conveyancer should:
• protect the interest of his client, the Seller, at all times and these interests should outweigh all other considerations except of course issues of legality;
• inform the seller of the conveyancing procedure and keep the seller informed of the progress of the transaction;
• advise the seller on the content of the Offer to Purchase, especially regarding suspensive conditions;
• advise the seller on the cancellation of his bond , any penalties, notice periods and other administrative charges which may affect the settlement figure;
• obtain the seller’s instruction before issuing any guarantees in respect of the transaction;
• do everything in his power to register the transaction on or as close as possible to the date agreed to in the offer to purchase;
• advise the seller on his obligations in terms of the offer to purchase, so as to ensure that the transfer is not delayed;
• meet with the seller to explain, as well as sign the necessary documentation in order to conclude the transaction;
• prepare the deeds for lodgement with care, so as to minimise the risk of rejection of the documentation by the Deeds Office;
• inform the seller of the transfer on the day of registration;
• account to the seller for finances relating to the transaction within two days after registration.
For most people, owning property will be their largest and most important investment.
Property is also the most expensive asset most people will ever own. Our property registration system in South Africa is one of the safest and best in the world and conveyancers are an important part of this registration system.
Greyvensteins Incorporated - Conveyancing Attorneys Cape Town, Johannesburg and Port Elizabeth
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