INFORMATION GUIDE TO CONVEYANCING
 

Contents
  1. What Is Conveyancing?
  2. Conveyancer's Actions On Receipt Of Deed Of Sale
  3. Existing Bond On The Property
  4. The Role Of The Municipality
  5. Preparation Of Preliminary Documents
  6. Signature and Costs
  7. Purchaser's Bond
  8. Final Phase
  9. How Long Does It Take
  10. Immigration Regulations

1.    What is conveyancing?

      Conveyancing describes the legal procedure whereby ownership of immovable property is   
      changed. (i.e. ownership is "conveyed" from the existing owner to the purchaser.)

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2.    Conveyancer's Actions On Receipt Of Deed Of Sale

        1.    It is self-explanatory that the Conveyancer in performing his duty will be guided by the
              contents of the Agreement concluded between the buyer and the seller as recorded in
              the Deed of Sale.  The Conveyancer therefor, is compelled to "Bake the Cake" in
              accordance with the "Recipe" prepared for us in advance!

       2.    On receipt of the Deed of Sale, the Conveyancer will immediately conduct a Deeds
              Office Search.  This Search will reveal the following:

             1.    The full Deeds Office description of the property being sold.

             2.    The full details of the current registered owner.

             3.    The full details of any bonds held over the property.

             4.    The full details of any interdicts recorded against the property.


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3.    Existing Bond On The Property

       1.    The Conveyancer will simultaneously with the above, address a letter to the current
             bondholder advising the bondholder of the fact that the property has been sold and
             calling upon the bondholder to forward the Title Deed to the Conveyancer.  He will
             simultaneously ask the bondholder to advise the Conveyancer of the amount required to
             pay off the existing bond on registration of transfer and request of the bondholder to
             instruct his own attorneys to prepare an appropriate Consent to Cancellation of the
             existing bond.  This latter form will be prepared by the bondholder's attorneys, signed by
             the bondholder and returned to his attorneys for purposes of subsequent lodgement at
             the Deeds Office.  As most financial institutions are unable to trace the file in which the
             Title Deed and Bond are retained without an account number be reflected in the
             information section of the Deed of Sale.

       2.   The Conveyancing Attorney will in due course receive a response to his letter to the
            existing bondholder.  This letter would have enclosed the Title Deed and would have
            stated the amounts required by the bondholder on cancellation of the bond.  Should the
            purchase price be sufficient, the Conveyancing Attorney will address a letter to the
            attorneys representing the bondholder promising payment of the amount required on date
            of registration at the Deeds Office.


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4.    The Role Of The Municipality

       The Conveyancer will simultaneously write to the Municipal Authority having jurisdiction over 
       the area in which the property is situated and will request from them the following
       information/documentation:

        1.    A valuation Certificate in which the Municipal Valuation of the property is stated - this
               document is required for purposes of obtaining a Transfer Duty Receipt from the
               Receiver of Revenue.

        2.    The amount which the Municipal Authority requires payment of as a prerequisite to
               issuing a Rates Clearance Certificate - in terms of Law no transfer of any property may
               be registered in the Deeds office unless the relevant Municipal Authority has provided
               permission.  This permission is termed a "Rates Clearance".  It is important to note that
               in obtaining a Rates Clearance one is compelled (regardless of any arrangements which
               the Seller might otherwise have had with the Municipal Authority) to pay the full amount
               of rates payable on the property to the end of the current rates year.  Municipal
               Authorities furthermore demand various other categories of payment in advance. 
               e.g. water and service charges.  Part of the amount payable to the Municipal Authority
               will be for the account of the Seller and part for the account of the purchaser.


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5.    Preparation Of Preliminary Documents

      On receipt of the Deeds Office particulars and subject to all suspensive conditions having
      being fulfilled, the Conveyancing Attorney will proceed to prepare his "preliminary
      documentation".  These documents comprise the following:

      1.    A Power of Attorney in terms of which the Seller authorises the Conveyancing Attorney to
            act on his behalf and appear at the Deed Office for purposes of registring the transfer of
            ownership at the end of the day.  This document will have to be signed by the seller
            personally or by somebody authorised in terms of written Power of Attorney to sign such
            document on behalf of the Seller.  It is therefor self explanatory that if the Seller is going
            to be away during the relevant period the transfer will be delayed unless adequate
            arrangements are made before his departure.

     2.    Declarations by Purchaser and Seller to the receiver of Revenue.  As you are no doubt
            aware transfer duty is payable to the Receiver of Revenue arising from sales of immovable
            property.  This transfer duty is a percentage of the purchase price.  The Receiver of
            Revenue is therefor quite anxious to ensure that he is fully advised of the actual purchase
            price and that such purchase price further more amounts to a fair and market related
            price.  The declarations which the buyer and seller will there have to sign serve to confirm
            all the above facts.  Should the purchaser and the seller therefor have reached some
            "private agreement" in terms of which the purchaser price as stated in the Deed of Sale is
            not a proper reflection of the actual purchase price, then these Declarations will serve to
            frustrate the endeavours of the parties as stated above.

      3.    Affidavits to be signed by the purchaser and the seller, confirming their correct names,
            identity numbers, marital status and solvency.


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6.    Signature and Costs

       When these documents are ready, the parties will be contacted by the Conveyancing
       Attorneys with a view to arranging an appointment for the signature of the documents.  On
       signature of the documents, the Conveyancing Attorneys will ask the purchaser to settle the
       transfer costs.  The account which the Conveyancer will present will comprise three elements
       being the followed:

      1.    The Conveyancer's own fee plus Vat thereof.

      2.   The cost of the Valuation Certificate (See paragraph 4.2 above).

      3.   The transfer duty.

      4.   Deeds office Fee.

      It is important that the purchaser settle these costs at least one month before scheduled date
      of transfer as the Conveyancer is required to pay the transfer duty due to the Receiver of
      Revenue before one may approach the     Deeds  Office.  The Conveyancer will simultaneously
      recover from the purchaser his pro rata share of rates and taxes in order  that a Rates
      Clearance can also be obtained.  As soon as these costs have been paid, the Conveyancer will
      forward his cheque plus supporting documentation to the Receiver of Revenue for the issue of
      a transfer duty receipt.  A cheque will simultaneously be sent to the Municipal Authority for
      purposes of the issue of a Rates Clearance Certificate.


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7.    Purchaser's Bond

      In the interim the Conveyancing Attorney will receive notification from Attorneys instructed by
      the financial institution who will be granting the the purchaser a bond advising of their identity
      and of the nature and extent of their instructions.  The Conveyancing Attorney will
      immediately send these "bond attorneys", a draft copy of the new title deed of the property. 
      This document is termed the "flysheet".  This document enables the bond attorneys to
      determine the description of the property which is to be bonded and furthermore to determine
      the full details of the purchaser.  The bond attorneys will then prepare their own
      documentation and arrange for the purchaser to call at their offices to sign their papers and
      pay their costs.


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8.    Final Phase

      When everybody is ready (i.e. the bond attorneys documents are signed, the bond
      cancellations attorneys consent to cancellation is in their possession and duty signed by the
      bondholder, the transfer duty receipt and simultaneously hand their folders of papers into the
      Deeds Office.  These papers are then collated by the Deeds Office and allocated to a specific
      Examiner.  The Deeds Office examiner inspects all the documents, and if found to be in order,
      approves the documents for registration.  This procedure in the Deeds Office takes
      approximately ten days. If any difficulties are discovered in any of the papers, the documents
      are "rejected". If the documents are approved for registration the Conveyancing Attorney after
      ensuring that all the finances for the transaction have either been will arrange with all the
      attorneys concerned for actual registration to take place.  At the moment of registration
      ownership passes from the seller to the purchaser and the transaction is complete.


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9.   How Long Does It Take

     It is self-explanatory from the above that it is very difficult to estimate precisely how long a
     transfer should take from the time that the Conveyancing Attorney receives his instructions.  If
     one is forced to make an estimate, then one can assume that if all the parties involved in the
     transaction, perform their function timeously, that the entire transaction could be completed
     within a period of six to eight weeks from the time of receipt of the initial Deed of Sale.


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10.    Immigration Regulations

        Much has been made of the "new" regulations promulgated in terms of the  "new" Immigration
        Act.

        Lest the publications cause unnecessary anxiety in the minds of foreign investors, it is
        important to stress that the new laws do not change the existing laws relating to he right of
        a foreigner to purchase immovable property in the Republic of South Africa.  In this regard
        out own publication on "Foreigner's Rights to own Property in South Africa" remains entirely
        correct and is an accurate representation of the law as it stands.  There is also no indication
        whatsoever from any government authority that any change to the above position is
        proposed or contemplated.

        The "New Regulations and Act" deal entirely with the right of foreigners to reside in the 
        Republic of South Africa whether on a permanent or temporary basis and are therefor
        relevant only insofar as they might affect the right of the foreign investor to enter South
        Africa for purposes of using his property.

        The majority of foreigners wishing to purchase property in South Africa fall within the
        following four categories and we shall accordingly restrict our commentary on the New
        Regulations and Act to the impact which they might have on such foreigners:

       1.    People who wish to own immovable property in the Republic and to use same for
              vacation purposes - There has been no significant change in the law affecting investors
              of this nature.  Such investors traditionally qualified for entry into the Republic on the
              basis of a "visitors permit".  This situation has not changed and there is no reason to
              believe that it will change.  A visitors permit is granted for a period of three months and
              can be renewed by the Department of Home Affairs if required.

       2.    People who wish to own immovable property in the Republic of  South Africa and to use
             same as their retirement accommodation - Changes have occurred which affect investors
             of this nature.  The permit which such an investor would wish to acquire is entitled a
             "retired person permit" [whether permanent or temporary].  The permanent permit is of
             course valid for an indefinite period.  A temporary permit is valid for a period of four years
             at a time and will be renewed by the Department if the investor continues to qualify in
             terms of the prescribed criteria.  The temporary permit is specifically capable of dealing
             with investors who wish only to remain in the Republic for limited or seasonal periods
             during the validity of the permit.  The criteria for qualification for the permits are that the
             investor must be able to establish that he has a pension [or retirement annuity or
             retirement account] producing a minimum income of R20 000.00 per month or that the net
             worth of the investor is R12 million producing an income of at least R15 000.00 per month.

      3.    People who wish to own immovable property because they wish to conduct business in
            the Republic of South Africa - The particular permit which such an investor would require
            is a "business permit" [whether permanent or temporary].  A permanent permit would
            endure indefinitely if, for a total period of five years after its issue, the investor continues
            to meet the criteria for qualification.  A temporary permit is valid for two years at a time
            and can be renewed as long as the investor continues to meet the criteria for
            qualification.  The criteria for qualification [for both permanent and temporary permits] are
            that the investor must invest at least R2,5 million in a business and must [amongst other
            prescribed alternatives] have either a proven entrepreneurial skill or prove that at least
            five citizens or residents will be employed by the business or prove that the business is in
            one which will operate in one of the listed sectors of the economy [example - information
            and communication technology, clothing and textiles, tourism or crafts].

     4.    People who wish to own immovable property because they have relatives in South Africa
            who are citizens or permanent residents of South Africa.  A temporary permit would be
            given to any foreigner if the foreigner is "immediate family" of any South African citizen or
            permanent resident provided that the South African citizen or resident establishes certain
            prescribed financial assurance relating to the care for such foreigner.  "Immediate family"
            includes the South African citizen's / resident's children, grandchildren, parents, brothers
            and sisters. Children and parents in fact qualify for permanent residence on the same
            criteria.

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Prepared by:  MILTONS INCORPORATED  As at April 2003 
Attorneys, Notaries and Conveyancers 
of Table View, Tygerberg and Claremont


Caution: While every effort has been made to ensure that the information contained in this article is correct, Miltons Inc. will not be liable for any loss suffered by any person due too any error in the article.



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