INFORMATION GUIDE TO CONVEYANCING |
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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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
| 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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