Your residential property is, most likely, your most valuable and important asset, and buying or selling a property can be an extremely daunting process, it is not something that you do on a regular basis.

This article is aimed at helping you understand the process, and the pitfalls, when it comes to buying and selling immoveable property.

THE ROLE OF THE ESTATE AGENT

Unless you have chosen to sell privately, you would generally appoint an Estate Agent to advertise the sale of your property and to introduce potential buyers to the property. What is important to note, when appointing an estate agent, is that you, as the seller, must disclose everything relating to the property, to the estate agent, so that when the agent introduces a potential buyer to the property, the buyer is given all of the correct information, warranties and undertakings related to the property. It is also important to make the agent aware of any moveables, fixtures or fittings that will not form part of the sale of the property. For example, if there is a beautiful water feature in the front garden, or a Wendy House in the back, it must be made very clear to the agent, whether that water feature or Wendy House are part of the sale or not. If you have an alarm or sprinkler system, it must be made very clear to the agent whether they are in working order or not. If there are defects, or if something is not working, it is not necessary for the seller to fix the defect, but it is necessary to make the buyer aware of the fact that something is not in working order and that the property is sold “as is”. The general rules is that, unless advised otherwise, the buyer is entitled to accept that everything she or he sees is part of the sale and in working order.

THE ROLL OF THE TRANSFERRING CONVEYANCER

The Transferring Conveyancer, is charged with attending to the transfer of the property, through the relevant Deeds Office, and securing the purchase price on behalf of the seller. The Conveyancer is obliged, at all times, to act in the best interests of both the seller and the buyer and to enforce the provisions of the sale agreement, in order to ensure that all parties comply with their contractual obligations. In the transfer of a property, it is usually the seller’s prerogative to choose the transferring conveyancer. The reason for this is because the buyer is generally the party with the most obligations, as she or he is obliged to secure the purchase price for the property.

If the seller has a bond over the property and the buyer is taking a bond over the property, in order to secure the purchase price, there will generally be 3 sets of
Conveyancers in a property transaction. The Transfer Conveyancer, the Bond Conveyancer and the Conveyancer attending to the Bond Cancellation.

– The Transfer Conveyancer:

As mentioned above, the Transfer Conveyancer is charged with effecting the transfer. In order to do this, the Transfer Conveyancer must liaise, and link, the transfer with the Bond Conveyancer and the Bond Cancellation Conveyancer. This is to ensure that the cancellation of the seller’s bond is secured and that the balance of the purchase price is secured through the buyer’s bond. The Transfer Conveyancer is also charged with paying the Transfer Duty to SARS and for obtaining a valid Clearance Certificate from the City Council and the Managing agents (if applicable) to ensure that when the buyer takes transfer, all rates and taxes and levies are paid up to date of registration of transfer.

– The Bond Conveyancer:

The Conveyancer attending to the Bond registration, is generally appointed by the bank which has granted the loan. The Banks have a panel of approved attorneys, and they chose the conveyancer from their panel. The Buyer may, if the Conveyancer is on the bank’s panel, request the bank to appoint a certain Conveyancer, but the banks do not always allow this. Depending on which bank approves the loan, the Bond Conveyancer may be the same as the Transfer Conveyancer, but this does not happen often.

– The Bond Cancellation Conveyancer:

As with the Bond Conveyancer, the Bond Cancellation Conveyancer is appointed by the Bank, which holds a bond over the seller’s property. This Conveyancer, if on the panel of the bank, may very well be the same Conveyancer as the Transfer Conveyancer, but not always. The Bond Cancellation conveyancer is charged with ensuring that the amount outstanding under the current bond is secured, by receiving guarantees from the Transfer Conveyancer.

This entire process is coordinated and managed by the Transfer Conveyancer, and the most important objective is to make sure that everyone’s “debts” are secured before registration of transfer into the buyer’s name.

Once all debts are secured and all certificates are obtained, then the Transfer Conveyancer will arrange with the other 2 Conveyancers to lodge, on the same day, in the relevant deeds office. All 3 sets of documents, together with the original title deeds and mortgage bonds, will be linked in the deeds office. The documents will then be examined by no less than 2 examiners, a junior and a senior examiner, and if the examiners are happy that the documents are in order, they will pass the documents for registration.

The Transfer Conveyancer will then liaise again with the other 2 Conveyancers, and all 3 Conveyancers will hand their documents in for simultaneous registration. After registration, the deeds office will update their records and the buyer will be noted as the new owner of the property, on the deeds office systems.

South Africa has one of the most comprehensive property registration systems in the world and it is a complicated process, but with the right Conveyancer guiding you through the process, it should not be as daunting as it at first seems.

THE PROCESS OF REGISTERING THE TRANSFER OF A PROPERTY