The legal aspect of buying and selling property may seem daunting. Firstly there is that dreaded ‘fine print’, which no matter how important, is tempting to skip over. In fact throughout the paperwork there is legalese that requires understanding before you sign every page to acknowledge you understand the contents of the document.
Every transfer of property from one person to another requires legal and financial representatives. Usually the latter is the bank, with whom the buyer or seller is likely to have already developed a relationship in the process of the formalising the deal. When the transaction moves over to the legal part of the deal, the role of the attorney is paramount.
Michelle Ramdeen, National Manager of Absa Attorney Panel explains that without a professional and experienced attorney, there could be hiccups in the transfer from the seller’s name to the buyer’s name. “The attorney is also the point-of-call for the mortgage bond registration, which is used as security for the financial institution lending the finance for the purchase, and they also attend to the cancellation of the seller’s existing bond.
Ramdeen takes us through the legal process.
“Once an offer has been accepted, the legal process begins. This requires the use of a conveyancer, a legal specialist, who is responsible for the administrative and legal procedures necessary to transfer to property. The conveyancing process is quite lengthy and involves many steps, which can happen simultaneously or sometimes in a slightly different order.”
There are a number of different conveyancers involved in a property transaction:
• The Transfer Attorney: This conveyancer drafts and prepares all documents required to finalise the registration of transfer of the property in the Deeds Office. The Deeds Office is responsible for the registration, management and maintenance of the property industry in South Africa. The Transfer Attorney will ensure that the Deed Of Sale that has been signed, meets all legal requirements, including obtaining a property’s title deeds from the seller’s bank and cancellation figures to settle any existing seller’s home loan. They also compile all supporting documents, such as municipal rates clearances and transfer duty receipts by dealing directly with entities like the municipalities and SARS.
• The Bond Attorney: Appointed by the financial institution/bank granting the loan, the Bond Attorney works closely with the Transfer Attorney from which a copy of the draft title deed and guarantee requirements are sourced. The Bond Attorney acts as the bank’s agent and facilitates the signing of all bank documents, like the mortgage loan agreement, and performs identification and verification checks of the customer. A Bond Attorney is also responsible for preparing property guarantees and bond registration documents.
• Cancellation Attorney: Appointed by the bondholder - if the seller has an existing loan - the role of the Cancellation Attorney is to receive cancellation figures from the seller’s bond holder/bank and send a copy of the title deed to the Transferring Attorney. The Cancellation Attorney will request a guarantee from the Transferring Attorney for the amount required to cancel the existing bond.
All three conveyancers make an arrangement to lodge the required documents with the Deeds Office simultaneously.
Hand-holding provides peace-of-mind
Home owners will likely have already been through the legal process once, when they made the purchase of the home, so have some understanding of the length of time the various steps take, and of course the legalese. For first-time buyers, the fear of the unknown can add some stress. Understanding this is Absa’s job explains Ramdeen.
“Absa will keep in contact with the buyer throughout the home purchase journey. We have consultants that monitor the conveyancers to ensure that the bond process runs smoothly. If there are any delays requiring amendments to the documents, Absa also assists to ensure those are actioned. The customer is continuously updated as the transaction moves through the different stages of the legal process.”
One of the additional roles played by Absa is to ensure that the customer understands the legal paperwork. “We make sure that Absa documents are written in customer-friendly language,” says Ramdeen. “The most important information is presented in plain language and highlighted in bold where necessary to make it easier for a customer to grasp.
“Customers are reassured that Absa’s attorneys are skilled, legal professionals who will consult with the customers and explain the legalities. We guide them through every step of this journey no matter how fearful a customer may be of the process.”
Ramdeen makes the point that all Absa attorney’s countrywide, are approved and accredited. “Conveyancers are also chosen based on having the required legal qualifications, experience dealing with bond and transfer registrations, and we only use fully-fledged, professional attorney offices to consult with Absa customers where they will sign documents. We also monitor attorney service levels regularly to ensure that customer service and turnaround times are met.”
What to expect from the customer/attorney relationship
The waiting period during transfer is often considered bittersweet. On the one hand there is the general excitement of the forthcoming new future, on the other is the leaving behind of the known and familiar. In the midst of these emotions swings is the reality of the formalities, which is why customers should rather view the attorney as a partner in the process.
“It’s very important to get to know your attorney and work with them by providing all documentation on time, to avoid any delays. Keep the channel of communication open, ask questions about the legal process, how long will it take, and the costs,” says Ramdeen. “As a customer you are free to negotiate attorney discounts on fees charged for professional services.
“The legal process is what provides you with the keys to your new or dream home, so it is very important to build a good relationship with your attorney so that you are kept up to date with progress on your transfer.”