This describes the legal process whereby a natural person or a juristic entity (for example, a company, closed corporation or trust) becomes the legal and registered owner of immovable property. During the conveyancing process, the rights, title and obligations are transferred from one party to another, and the mortgage bond is registered.
2) Offer to Purchase / deed of sale
The Offer to Purchase or deed of sale is the contract that governs the relationship between the seller and purchaser. It includes the contractual terms, which state what is expected of each party. Any special condition that forms part of the agreement can be inserted by either party – for example, the purchase can be made subject to the successful sale of another property.
3) Party description / citation
The parties involved in a transaction must be accurately described to meet the requirements of the Deeds Office. This ensures that the rights and title are correctly transferred, and that the information stored on the National Database is accurate. Natural persons must supply their full names, identification number and marital status, while juristic entities must provide company registration documents or, in the case of a trust, the Letter of Authority. It is vital that the conveyancing attorney is provided with the most up-to-date and correct information to ensure compliance with the Deeds Office.
4) Bond registration attorneys
If the purchase of a property is subject to a mortgage loan being in place, the financial institution granting the mortgage bond will appoint attorneys to manage its registration. All documents that need to be signed by the purchaser will also be drafted during this process.
The deposit is the initial payment made by the purchaser to secure the property. It is held in the trust account of the conveyancing attorney appointed to manage the transfer, with any interest accrued on this amount being allocated to the purchaser.
6) FICA documents
The Financial Intelligence Centre Act (FICA) requires that financial and other accountable institutions, like attorney firms, establish and verify a client’s identity to combat money laundering and the financing of terrorism. FICA documents are requested from the parties as set out in the Offer to Purchase – natural persons, for example, must supply an identity document, proof of address, marriage certificate etc., while juristic entities must supply company registration documents or, if it is a trust, the Letter of Authority.
7) Electrical Compliance Certificate / Gas Certificate / Beetle Borer Certificate
A Certificate of Compliance or CoC states that certain requirements have been fulfilled. Compliance to electrical, electric fence, and water and gas installations are prescribed by law, with penalties being incurred for non-compliance. Applicable certificates are usually also requested by financial institutions to ensure that the property is compliant for their security purposes.
8) Rates clearance / levy clearance / Homeowners’ Association clearance certificate
Clearance certificates are vital to the transfer process as the Deeds Office will not effect transfer until the necessary clearance certificates have been lodged. The local authority or municipality issues a rates clearance certificate to show that no outstanding monies are due to them. If the property in question is in a sectional title scheme or estate, a separate clearance certificate is required from the managing agent or Homeowners’ Association.
9) Transfer duty and value added tax (VAT)
Transfer duty or Value Added Tax (VAT) is calculated on the purchase price according to the sliding scale communicated by the Revenue Service. Transfer duty is usually for the purchaser’s account. VAT is applicable to transactions where the seller is a VAT-registered vendor. If VAT is applicable, no transfer duty is payable.
This is the final stage of the conveyancing process. Once all documents, ancillary information and clearances have been obtained, the transaction can be handed in for lodgement at the Deeds Office in whose registration division the property falls.
Written by Wessel de Kock