Conveyancing & Property Transfer SA - F.A.Q

The term "CONVEYANCING" describes the legal process whereby a person, company, close corporation or trust becomes the registered and lawful owner of fixed property and ensures that such ownership cannot be challenged. It also encompasses the process of the registration of mortgage bonds. (See our brochure on "Mortgage Bonds").
A Conveyancer is an attorney who also passed the national conveyancing examination and by law is the only person who can register fixed property transfers. This is necessary to ensure the protection of the various interests the parties have in the transaction and to maintain the high standard of land registration.
The seller usually appoints a Conveyancer to attend to the transfer of fixed property, although this, like other aspects of a sale agreement, can be varied by negotiation between the parties.
CONCLUDING A WRITTEN DEED OF SALE
The Act prescribes certain information to appear in a deed of sale:
  • parties to the agreement;
  • price as agreed upon and
  • property description.
Supplemental information includes:
  • method of payment of purchase price;
  • details of financial arrangements to be made;
  • date of occupation and occupational interest payable;
  • date of passing of risk concerning the property; liability for payment of transfer fees;
  • details of agents commission and liability for payment thereof and other terms as agreed upon by the parties on conclusion of the deed of sale.
NOTE: Ownership does not pass on the date of the agreement, but only later on date of registration. Prior to registration the purchaser merely has a personal right to claim transfer of the property.

APPOINTMENT OF THE CONVEYANCER
According to the Common Law, it is the seller's prerogative to appoint a conveyancer of his choice to attend to the registration of the transfer of his immovable property. Keep in mind however
that several attorneys may be involved as one such transaction usually entails the following simultaneous actions:
  • Transfer of property from seller to purchaser;
  • Cancellation of sellers existing bond and
  • Registration of purchasers new bond.
Different conveyancers therefore attend to the various transactions in this process. They are referred to as the transferring attorney (who handles the transfer), the cancellation attorney (who represents the financial institution of the seller existing bond) and the bond attorney (who effects the registration of the new bond in the name of the purchaser). For each of these different transactions there are different fees and expenses payable, respectively linked to the purchase price and to the amount of the bond to be registered.
The estate agent or seller provides the conveyancer with the deed of sale. The conveyancer then proceeds to gather the necessary information and documentation to proceed with the registration process.
This includes:
  • full names, identity numbers and marital status of all parties;
  • the existing title deed of the property;
  • details of the cancellation figure regarding the bond (being the outstanding balance owed on the seller's bond, including capital and interest);
  • the outstanding rates and taxes/levies, which are payable monthly;
  • the means by which the purchaser intends to finance the transaction, through which financial institution and the amount of the loan and
  • information obtained from the Deeds Office regarding restrictions noted against the property or against any party that may influence the transaction.
DRAFTING AND SIGNING OF DOCUMENTS
After fulfilment of all suspensive conditions e.g. granting of a loan and the obtaining of all relevant information, documents are prepared for signature by all the parties.
Transfer documentation
  • Power of Attorney by which the seller empowers a conveyancer to appear before the Registrar of Deeds on his behalf to register the deed of transfer;
  • Insolvency and Marital Status Declarations by both parties to the transaction and
  • Transfer Duty Declarations by both parties in terms of which details regarding the purchase price are declared to the Receiver of Revenue together with the payment of transfer duty.
Bond documentation
Where a part of the purchase price is being financed by means of a loan, the purchaser will sign documentation at a conveyancer acting on behalf of a financial institution, for the registration of the bond over the property as security for the loan. The required documentation is usually the following:
  • Power of Attorney to pass the bond whereby the purchaser empowers a conveyancer to register the bond in favour of the financial institution who granted the loan;
  • Insolvency and Marital Status Declarations and
  • Standard documentation of the financial institution. Each financial institution has its own set of required documentation to be signed before registration.
 STATEMENT OF ACCOUNT
The statement of account regarding the transfer usually consists of
the following:
  • Transfer duty: This is a form of tax payable to the Government, calculated at a specified rate on the value of the property.
  • If however, VAT has been included in the purchase price, no transfer duty is payable;
  • Rates and taxes/levies: Payable in advance to the Local Authority or in the case of a sectional title unit, payable to the Body Corporate;
  • Transfer fees: Prescribed by the Regulations and calculated
  • according to the value of the property;
  • Provisions for postages and disbursements;
  • VAT: On services rendered and
  • Deeds Office Registration fees: Payable per registration.
The statement of account regarding the bond registration usually consists of the following:
Fees of the financial institution: This can include inspection fees, initiation costs, administration costs and other costs;
Bond fees: Prescribed by the Regulations, payable to the conveyancer and calculated on the amount of the bond to be registered;
VAT: On services rendered;
Provisions for postages and disbursements and
Deeds Office Registration fee: Payable per registration.

FINANCIAL ARRANGEMENTS
The conveyancer is responsible to attend to a variety of financial arrangements during the registration process for example:
  • Collection of all costs as payable per statement of account;
  • Payment of transfer duty to the Receiver of Revenue and the obtaining of a transfer duty receipt;
  • Payment of rates and taxes/levies and obtaining a clearance certificate from the Local Authority or a levy certificate from the Body Corporate. (It is prescribed by law that no account for rates and taxes/levies payable by the existing owner shall be in arrears on the date of transfer);
  • Guarantees are requested from the purchasers financial institution for the available amount of the loan, for the payment of the outstanding amount of the purchase price. (A guarantee is an undertaking by a financial institution to pay the amount as set out therein on date of registration);
  • Arranging for the cancellation of the existing bond of the seller through the issuing of guarantees for the amount outstanding on the bond and
  • Arranging payment of the balance purchase price.
  • The full amount of the purchase price must be available, (except where the deed of sale states otherwise) either by means of a guarantee or a cash
  • deposit before registration.
  • In accordance with the deed of sale, you may request that all deposits made by yourself must be invested in an interest bearing account in your favour, for payment on date of registration.
THE DEEDS OFFICE
Conveyancers attending to the various aspects of the transaction liaise with each other on a continuous basis to arrange simultaneous lodgement and registration of all the documents at the Deeds Office. The Deeds Office is a Government Registration Office and keeps record of all real estate transactions and rights regarding such properties.
There are offices in Pretoria, Johannesburg, Bloemfontein, Cape Town, Kimberley, Pietermaritzburg, Nelspruit and Vryburg.
Each set of lodged documents is examined by Deeds Office officials to ensure that it complies with all relevant acts and regulations. Afterwards it is made available to the various conveyancers for
registration in the presence of the Registrar of Deeds. The linked set of documentation is registered simultaneously.

REGISTRATION
Registration renders the purchaser the registered owner of the property and his real rights are thus protected against third parties.
All financial arrangements are usually finalized within 24 hours after registration. This entails the payment of guarantees by the purchasers financial institution, payment of the amount of the cancellation figure to the existing bondholder, payment of the balance purchase price to the seller and the setting of accounts with all parties.
It is difficult to predict the exact duration of a transaction, the reasons being:
 
a. The deed of sale may be subject to suspensive conditions eg:
 - the sale and conclusion of registration of the purchaser's property within a certain time period and
- the obtaining of a loan within a specified time period, before which the transaction does not proceed.
 b. Government Offices and other institutions require certain time periods to deliver documentation or issue certificates necessary in the process e.g.:
- clearance certificates from the Local Authority or the Body Corporate (6-10 days);
- transfer duty receipts from the Receiver of Revenue;
- guarantees from the Financial Institutions (7-21 days);
- consents to cancellation from the existing bondholders (7- 14 days) and
- Deeds Office for registration (8-15 days).
Unforeseeable problems: the fact that so many institutions are involved in the registration process adds to unexpected delays (for example postal delays or unusual conditions of title which may prevent timeous finalisation of the transaction).
All the above time periods may vary, but as a rule the usual duration of the registration process is 24 to 35 days after the confirmation of all financial arrangements.

In a normal conveyancing matter there are 3 attorneys:
  1. Transferring attorney – attend to the overall transfer of the property from the seller to the buyers’ name.
  2. Bond cancellation attorney – attend to the cancellation of the bond which is in the name of the seller.
  3. Bond registration attorney – deals with the registration of the bond in the name of the buyer.

Transfer fees are based on the value of the property. These fees are suggested by the Legal Council. The feespublished is only a guideline  to the transferring and bond attorneys. The disbursements, however, are at the discretion of the attorneys and these may vary from attorney to attorney. Transfer fees are negotiable within reason.
The municipality’s system takes anything from 6 - 52 weeks and more to refund the Seller. The municipality will request the seller to provide an instruction letter from the transferring attorneys to process the refund. There is no time frame in which the municipality operates to attend to the refund and this can unfortunately take any amount of time.
Once the matter registers in the deeds office, payments will usually be made 1-3 days after registration. This is to allow time for a bond to pay out and for the attorney to work out the finances.
The transfer costs are usually payable after the purchaser has signed the transfer documents.
Yes they can, however certain rules for signing will need to be followed. The procedure to be followed will depend on the country where the documents are being signed. E.g. The documents may need to be signed before a Notary Public and then Apostilled or they can be signed at the South Africa embassy.
Registration usually takes approximately 7-10 working days from date of lodgement. However, this time period differs depending on the Deeds Office where the transfer is lodged.
After registration the transfer documents (including the title deed) are microfilmed by the Deeds Office and thereafter they are released to the transferring attorneys. If there is a bond registered over the property the transferring attorneys will hand the original title deed to the bond attorneys who will then deliver same to the bank. The bank will hold onto the original title deed until the bond is cancelled. If no bond is registered over the property the transferring attorneys will hand the original title deed to the new owner thereof for safe keeping.
A deed of sale is a legal document that contains the terms of a contract of sale of a piece of land or an apartment in a block of flats and which must be signed by the seller and the buyer or their authorized agents.
By operation of the law, documents that are intended for the registration of transfer or mortgaging (making subject to a bond) property must be prepared by a conveyancer. A conveyancer is an admitted and practicing attorney and who has also been admitted to practice as a conveyancer.
A copy of a title deed, for information purposes, is obtainable from any Deeds Office upon written application to the Registrar of Deeds and payment of the prescribed fee which changes from time to time. The officials at the information section of a Deeds Office assist members of the public with the completion of the request forms and with the payment of the prescribed fee. You can also contact us and we will gladly order a copy online at a small fee.
Your deposit can be paid either to the estate agency or the conveyancers appointed to handle the transfer. They both have trust accounts where your money will be held pending the registration of transfer. Parties must stipulate in the offer to purchase where the deposit must be paid and as well as the date the deposit is due. We prefer that the deposit be paid into the trust account of the transferring attorney. Remember to sign an authority to invest enabliong the attorney to invest the money on your behalf until needed. Guarantees may also be issued against these investments.
The purchaser is usually liable for the following costs:
  • Transfer duty, which is a tax levied on property and based on the purchase price;
  • Transfer fees payable to the transferring attorneys;
  •  Bond Registration Fees payable to the bond registration attorneys.
The Seller is usually liable for the following costs:
Agents commission as agreed between the seller and the estate agent;
Cost related to cancelling the existing mortgage bond registered over the property;
Rates and taxes that are due on the property, as well as outstanding levies in respect of a sectional title unit;
Costs related to obtaining compliance certificates eg: gas, fence, electrical certificates.
Bond costs are broken done similarly to transfer costs, being attorney’s fees. The amount payable will be determined by the value of the bond and by attorney’s tariffs. Depending on the bank you choose to go with, an initiation fee will be payable by the purchaser. This initiation fee is payable to the attorneys who will pay the fee directly to the bank.
Transfer Duty is a tax levied on the value of any property acquired by any person by way of a transaction or in any other way. Transfer duty has to be paid before the transfer can be completed. No transfer duty is payable on property acquired up to R950 000. Transfer duty is payable by the purchaser of the property.
Occupational rent typically comes into play when a buyer moves into the property before transfer and registration has taken place, or a seller remains in occupation of the property for a period after that point. Occupational rent is a form of financial compensation for the use of a property that the party does not own.
The Deeds Office keeps a record of all property transactions. If a title deed is destroyed or lost, application can be made to the deeds office for a duplicate original of the deed, at a fee. The application is accompanied by an affidavit stating that the deed is actually lost or destroyed and that diligent search has been made for the deed. Once the Registrar is satisfied he will then issue a certified copy of the title deed which will, for all purposes, be treated as if it were the original.
There are up to five certificates that may have to be supplied to the Purchaser when selling your house, namely, electrical, beetle, gas, water/plumbing and electrical fence. It is the Seller’s responsibility to pay for these certificates and to fix anything required in order to obtain the certificates.
After all the documentation has been signed and the costs paid, the transfer, new bond and cancellation bond documents are prepared by the respective attorneys for lodgment in the deeds office. All the documents are lodged in the Deeds Office by arrangement with the attorneys concerned.
You are required to give the bank 90 days’ written notice of your intention to settle your home loan, failing which the bank will charge 90 days’ interest in lieu of notice.

As soon as you supply us with the bond account number we will give the bank notice on your behalf by applying for the cancellation figures. Should registration then occur for example on day 60, you will only be liable for the remaining 30 days’ interest.





Yes, you should keep on paying these as you will be refunded after registration for any surplus amounts paid.
Section 2(1) of the Alienation of Land Act No 68 of 1981, stipulates that no alienation of land shall be of any force or effect unless signed by the parties to it or by their agents acting on their written authority.  Someone signing on behalf of someone else must be authorised by a written Power of Attorney.
Conveyancing has become a very stressful profession, with conveyancers and their staff often under immense pressure to perform to clients' expectations.

Much of the process, which they have to coordinate, is actually out of their hands. They are heavily dependent on banks, city councils, revenue offices and other role players (including local deeds offices) to perform their duties by furnishing them with bond instructions, rates clearances and so on.

Conveyancers and their secretaries are delayed and compromised by buyers who fail to pay deposits or rentals on time, or by both buyers and/or sellers wanting to change agreements resulting in inevitable further delays. Often it is just one party that defaults, resulting in the other pressuring the conveyancer to remedy the situation, hassles with electrical certificates and latent defects pressurise conveyancers even further.


  • 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.

  • contact his/her bank to find out whether or not s/he qualifies for a home loan and if so, what amount s/he qualifies for;
  • make sure that s/he can afford the monthly loan repayments and other costs like, rates and taxes, water and electricity, insurance premiums and so on;
  • find out about any once off costs, for example, legal costs, transfer duty or value added tax, loan administration, initiation and registration fees and so on;
  • consider his/her future needs, for example, whether the property that s/he intends to buy is close to his/her work, shops, schools, hospitals and so on;
  • examine the property s/he intends to buy thoroughly for any defects or potential defects, for example, cracks in the walls, damage to the roof, faulty plumbing and so on. The defects may be taken into consideration when negotiating the purchase price of the property; and
  • ask the person selling the property (“seller”) to provide him/her with the following documents: copies of the title deed and diagram; any existing lease agreements; approved building plans; and any other relevant information (such as zoning, town planning or municipality requirements). These documents must also be taken into consideration when negotiating the purchase price of the property.
  • After examining the property and perusing the documentation, the buyer must decide whether or not s/he is interested in buying the property. If the buyer is interested in buying the seller’s property, s/he can make an offer to the seller or his/her estate agent.
  • When the terms and conditions of an offer to purchase are being negotiated, the buyer will be asked for the date that s/he intends to move into the property (occupation date). If no date is set, the seller has the right to remain in the property until the property has been registered (transferred) into the buyer’s name and the seller has received the purchase price. 
  • After the buyer and seller have reached an agreement on the terms and conditions of the sale, the offer to purchase must be reduced to writing (if not already done so) and signed by both the buyer and the seller in acceptance; a sale agreement comes into existence. 
  • Any change to the sale agreement must be done in writing and signed by both the buyer and the seller. 

No. When a seller decides to sell his/her property privately, it is advisable that s/he  approach a professional to draw up a sale agreement. The professional must have the necessary knowledge and skills to advise the seller and draft a sale agreement best suited for the particular sale. Contact us to assist with the contract, fee quotation, and transfer of the property?
  • Identity of the seller and the buyer: by including their names, identity numbers, addresses, marital statuses and so on.
  • Description of the property being sold by the seller: by including the deeds office’s description, size, and/or street address of the property being sold.
  • Purchase price of the property payable by the buyer: by including how the purchase price is going to be paid for by the buyer, for example, in cash or by obtaining a loan, and whether or not a deposit is payable. If a deposit is payable, the deposit must be held in an interest-bearing trust account by the conveyancer (the attorney instructed to transfer the property). If the purchase price is R250 000 or less, a cooling-off period of five working days will apply.
  • The terms and conditions that the seller and the buyer MAY also agree on are, for example:
  • Fixtures and fittings: anything else included in the sale of the property must be specified, for example, a tool-shed, curtains, remotes and so on.
  • Conveyancer: details of the conveyancer handling the transfer. Usually the seller decides on a conveyancer, however, the seller and the buyer may also agree on a conveyancer.
  • Costs: person responsible for certain costs relating to the transfer of the property, for example, obtaining a clearance certificate, transfer duty or value added tax and so on. The buyer and the seller are usually responsible for their own costs relating to obtaining, or cancelling of, a loan for the property.
  • Occupation: the date of occupation by the buyer (on registration or a specified date before or after registration of the property into the buyer’s name) and the amount of occupational rent payable by the seller or the buyer, if any.
  • Voetstoots: when a property is sold “as is” (current condition). The defects or possible defects must be disclosed to the buyer to avoid liability for damages.
  • Estate agent: name of the estate agent and the amount of commission payable, if any. The commission is negotiable between the seller and the estate agent.
  • Certificates: the seller must provide, at his/her costs, an electrical compliance certificate, electrical fence certificate, pest control certificate and/or a gas compliance certificate.
  • Suspensive conditions: for example, whether the sale is subject to the buyer obtaining a loan within an agreed period of time. The sale cannot proceed until all the suspensive conditions have been met.
  • Breach: what will happen if the seller or the buyer does not comply with the sale agreement, for example, if the buyer breaches the agreement of sale, the seller will notify the buyer to fix the breach within seven days. If the buyer does not fix the breach, the seller will be entitled to proceed with a claim for performance in court or cancel the sale agreement and proceed with a claim for damages in court. 

A suspensive condition is an uncertain future event. The Offer to Purchase is thus subject to the happening of this uncertain future event. Should the Purchaser fail to comply with the suspensive conditions pertaining to his/her specific offer within the allotted time frame, the Offer to Purchase becomes null and void and is of no effect.
Sale agreements can provide for up to five different types of compliance certificates to be obtained by the seller before a property transfer is registered. These may be required in both conventional and sectional title transactions.

1. ELECTRICAL COMPLIANCE CERTIFICATE
• Certifies that the electrical installation on the property complies with the required safety standards. • Governed by the Occupational Health and Safety Act. • Valid if issued less than 2 years prior to transfer. However, if any modification was made to the installation after the certificate was issued, a new certificate must be obtained. • Best for the inspection and remedial work to be carried out as soon as possible after the deal is concluded, and prior to the purchaser moving in.

 2.  ELECTRIC FENCE COMPLIANCE CERTIFICATE  
• The certificate must be obtained on installation, and if any change or amendment is made, a new certificate must be obtained.
• Certifies that the electric fence installation complies with the required safety standards.
• Governed by the Occupational Health and Safety Act.
• An existing certificate may be transferred by the seller to the purchaser. A seller need only provide a new certificate to the purchaser if a change was made to the installation after the current certificate was issued.
• The requirement also applies to sales of sectional title units if there is an electrical fence system situated on common property.

3. GAS COMPLIANCE CERTIFICATE

• The certificate must be obtained on installation, and if any change or amendment is made, a new certificate must be obtained.
• Certifies that the gas installation on the property complies with the required safety standards.
• Governed by the Occupational Health and Safety Act.
• A new certificate must be obtained every time there is a change of ownership. • Parties cannot contract out of this or agree to waive. • Seller is required to obtain the certificate prior to transfer.

4. WATER/PLUMBING COMPLIANCE CERTIFICATE
• Certifies that the water installation at the property is in line with municipal and building guidelines.
• Governed by the City of Cape Town Water By-law. Only applicable to transfers within the municipal jurisdiction of the City of Cape Town.
• A new certificate must be obtained upon change of ownership.
• Parties cannot contract out of this or agree to waive.
• Seller is required to submit the certificate to the City of Cape Town municipality prior to transfer.

5. BEETLE COMPLIANCE CERTIFICATE
• Usually valid for 3 to 6 months only.
• When there is a change of ownership this certification is often called for; it is not obligatory.
• Certifies that the accessible wood of permanent structures on the property is free from certain wood destroying beetles.
• Not governed by any specific law, but a practice that has evolved over the years.
• Parties can contract out of this; however, if parties agree that no certificate is necessary and bank requires it for purchaser’s bond, then this is for the purchaser’s expense