PROPERTY LAW

Our Conveyancing Department is headed by Director, JO-HANNA NELL (ONA), assisted by HANNELIE HATTINGH. Both Ona and Hannelie are admitted conveyancers and Notaries.

“Conveyancing” is a term generally used to describe Property Law matters. This includes the preparation of documentation for the Conveyance (Transfer) of Immovable Property (Property), Bond Registration over Fixed Property and Bond Cancellations on behalf of the Seller of an Immovable Property.

The term is much wider and includes any creation and/or amendment of Property Rights, Real Rights over Properties, etc., including, but not limited to:

  • Township Registration;
  • Opening of Sectional Title Registers;
  • Servitude Registrations;
  • Sub-divisions and Consolidations;
  • Interdicts; and
  • Removal of restrictive Title Conditions, etc.

SUMMARY OF EVENTS IN A CONVEYANCING MATTER

The process, in short, is as follows:

1. The Sale Agreement

Upon receipt of your instructions, we will peruse the Sale Agreement to determine the terms and conditions. We will enforce the Agreement, all payments in lieu thereof, etc., to the best of our ability, with the assistance of your Estate Agent. Should we be concerned about any of the terms and conditions, we will communicate with all parties and clarify any uncertainties. We will also proceed to diarise all dates (e.g. when the Deposit must be paid, when the Guarantee must be delivered, the date of occupation, etc.).

2. Suspensive Conditions?

The Sale Agreement may contain certain suspensive conditions (e.g. obtaining of a Mortgage Bond by the Purchaser, or sale of the Purchaser’s property). These are conditions that must be fulfilled before the Transfer process can proceed. Should any of the suspensive conditions not be complied with within the time frame that is stipulated in the Agreement, then the Agreement will lapse (in other words, it will fall away as if it never existed in the first place). All parties must take all reasonable steps for the suspensive conditions to be fulfilled, failing which, the other party might have a claim for damages against you. 

3. FICA Documentation

In terms of the Financial Intelligence Centre Act, as Attorneys, we have the responsibility to ensure that the Act is complied with correctly. Thus, we will require certain “FICA documents” which will have to be summarised and attached to the documents for easy reference. Initially, we will require faxed or e-mailed copies of the documents, but the originals will have to be signed to enable our Conveyancer to certify that they are authentic.

4. Deposits

The Sale Agreement will determine whether a Deposit is payable and if so, when the Deposit must be paid into our Trust Account. Deposits MUST be paid, irrespective of whether your Bond has been approved or not.

If the Bond is approved, but not for the full amount, and where the Purchaser agrees that the lower Bond will be accepted, a further Deposit will be payable by the Purchaser in terms of an Addendum, which we will prepare according to the Guarantee delivery date (discussed below).

5. Cancellation of Existing Bonds

All existing Bonds registered by the Seller over the Property, need to be cancelled, simultaneously with the Transfer of the Property. We will request the Seller’s Bankers to submit the Bond Cancellation Figures. They will then instruct their Bond Cancellation Attorneys to attend to the cancellation. The original Title Deed and Bond Deed will be forwarded to the Bond Cancellation Attorneys and they will then lodge the Deeds at the Deeds Office. Once we receive a copy of the Title Deed, we should be in a position to draft the Transfer documentation (subject to the receipt of FICA documents by all parties).

6. Registration of a New Mortgage Bond

The Sale Agreement will, once again, determine whether the Purchaser needs to obtain a Bond for the full Purchase Price, or a Balance (after the Deposit is deducted) on the Purchase Price. A certain amount of time will also be granted for the Bond to be approved (see suspensive conditions above). From the date the Sale Agreement is signed, the Purchaser will need to co-operate with his/her Bankers/Bond Originators, and take all reasonable steps such as supplying the Bankers/Bond Originators with all the necessary information and documentation, for a Mortgage Bond to be approved. Once the Purchaser’s Bond is approved, the Sale Agreement is normally unconditional, and the transaction can proceed on an urgent basis. The Purchaser’s Bank will appoint Bond registration Attorneys who will deal with the Bond registration on his/her behalf. At this point, we will print out our Transfer documentation, which we have previously drafted, and arrange for the documents to be signed.

7. Rates Clearance Certificate

No Transfer of ownership of land can be effected without a Rates Clearance Certificate by the Local Authority certifying that the Seller has paid all Municipal Rates and Taxes to date. After the Bond has been approved (or after any possible remaining suspensive conditions have been fulfilled), our Offices will proceed to instruct our Agent to obtain the Rates Clearance Figures from the Local Municipality. The Rates Clearance Figures are the responsibility of the Seller, and the Seller will be asked to pay any outstanding amount once we receive the figures. Once proof has been received that all payments have been made, we can obtain the Rates Clearance Certificatewhich will be lodged at the Deeds Office within approximately 3 (three) business days.

8. Levy Figures

If the Property is either a Sectional Title Unit or a Full Title property located within a Security Estate (Home Owners Association), we will apply for Levy Figures (similar to Rates Clearance Figures) from the Body Corporate/Home Owners Association/Managing Agent. To save time, it is very important that we be advised if any Home Owners Association is applicable over the Property. As with the Rates Clearance Figures, the payment of any rates and taxes is the responsibility of the Seller. Once proof of payment is received from the Seller, it will be forwarded to the Body Corporate/Home Owners Association for the issuing of a Levy Certificate, which will be lodged at the Deeds Office.

9. Guarantees

The Sale Agreement will determine when the Bond Attorneys need to deliver the Guarantees, should the Purchaser make use of a Mortgage Bond (see 6 above). If a transaction is deemed as a cash transaction, Guarantees will be requested from the Purchaser’s Banker. Two (2) Guarantees will, under normal circumstances, be requested in favour of:

  • the Seller’s Banker for cancellation of the existing Mortgage Bond; and
  • our Company (Trust Account), for distribution on the date of registration of ownership into the name of the Purchaser.

Once we receive the Guarantees, the first Guarantee, referred to above, is forwarded to the Bond Cancellation Attorneys to enable them to obtain the Bondholder’s signature on the Consent to Bond Cancellation.

10. Signature of Documentation

Our Conveyancer will ask you to sign the Transfer documents at our Offices once all suspensive conditions have been met, and once all the necessary information necessary has been obtained.

11. Transfer Duty/VAT and Transfer Costs

Either Transfer Duty or VAT will be payable on a Sale Agreement. In most instances, the Purchaser will be liable for the Transfer Duty, and the amount of Transfer Duties will reflect in our Pro Forma Statement of Account, which we will forwarded to you in due course. Transfer Duties need to be paid simultaneously with, or very soon after, the documents are signed, to enable us to lodge our Transfer Duty Declarations, via E-filing, with SARS. The Transfer Duties are then paid, and the Transfer Duty Receipt is forwarded to us via E-filing by SARS. The Transfer Duty Receipt is also lodged with our documents at the Deeds Office.

Our Transfer Costs will also reflect on our Pro-Forma Statement of Account, which will be delivered to you after the Transfer Documents are signed. These cost must be paid before the documents can be lodged in the Deeds Office. All these costs and expenses are payable by the Purchaser.

12. Electrical Certificate

All Properties sold must be accompanied by an Electrical Compliance Certificate, as stated in the Sale Agreement. The Electrical Compliance Certificate is the responsibility of the Seller, who will need to appoint a certified Electrician to inspect the electrical installation in and to the Property. 

If the Property has an Electrical Fence, the Seller has to obtain and supply an Electrical Fence Certificate.

If the Property has a Gas Installation, the Seller has to obtain and supply a Gas Certificate.

We will need the above-mentioned applicable Certificates prior to lodgement at the Deeds Office.

13. Lodgement

 As soon as all the above steps have been completed and we are in possession of our:

  • Guarantees;
  • Transfer Duty Receipt;
  • Rates Clearance Certificate;and
  • Levy Clearance Certificate.

We should be in a position to lodge our documents at the Deeds Office for registration. We are, however, reliant upon the Bond Attorneys and Bond Cancellation Attorneys, who need to lodge their Consent to Bond Cancellation and Bond Registration documentation simultaneously with our Transfer. The transactions are linked in a “batch”, consisting of Transfer, Bond Cancellation and Bond Registration.

14. Preparation (“prep”)

After lodgement at the Deeds Office, the documents are examined by 3 (three) levels (Junior Examiner, Senior Examiner and Assistant Registrar). Once the Deeds have been examined and passed by all three (3) levels, they will be placed on “prep” with notes to the Conveyancer. These notes are known as preparation notes and need to be complied with prior to registration. Five (5) working days are given to the Conveyancer to deal with any details, if necessary. Under normal circumstances, the documents will proceed to registration on the next business day.

15. Registration

After preparation, the documents are sent to the Registration Department in the Deeds Office. The Conveyancer will execute the Deeds before the Registrar and Assistant Registrars of Deeds. The documents will then be signed by the Registrar/Assistant Registrars and be forwarded for Numbering, Data, Micro and Delivery to the Conveyancer. These processes, after registration, take approximately 4 (four) months.

16. Finances

Upon registration, the Conveyancers will notify their clients, the Financial Institutions and the Agents of the registration. Guarantees should be paid into the Trust Account of the Conveyancer during the evening after registration and the finances can normally be finalised on the first business day after registration. We will draw up the final Statements of Account, reflecting all the income received and all expenses paid, fees, VAT, etc., which will be forwarded to you within 3 (three) business days after registration.

17. Delivery

The original Deed of Transfer will be delivered to the Conveyancers within approximately 4 (four) months from registration. The Conveyancers will then forward the original Title Deed to the Bond registration Attorneys to be held as security by the Purchaser’s Bankers. If no Bond was registered, we will deliver the Deed of Transfer directly to the Purchaser.

18. Refunds by Local Municipality

We can supply the Seller with the contact details of our Agent, to assist him/her/it with the necessary journals and claim for a refund. The Parties may also elect to attend to this themselves.

19. Name Change at Local Municipality

 The Agent can also assist the Purchaser with the name change on the account. The Parties may also elect to attend to this themselves.

Please note that the Parties should also co-operate with each other for the closure and re-opening of all consumption accounts on the date the Property is occupied by the Purchaser.  

20. Refund by Body Corporate/Home Owners Association

The Seller will deal directly with the Body Corporate/Home Owners Association for any refunds due to them.

Upon registration, the Seller shall receive a pro rata refund on Levies pertaining to the month in which registration takes place. 

We trust that the above gives you a better understanding of the Transfer processes, and that this will assist you in going forward. We also trust that you will be satisfied with our Company’s services and we invite you to contact our Conveyancer directly should you have any queries or problems.