When it comes to selling a property, choosing the right attorney for the job can make all the difference to how long the transfer process will take, says Adrian Goslett, CEO of RE/MAX of Southern Africa.
He explains that in the property transfer and registration process there are usually three different conveyancers involved; the bond attorney, the bond cancellation attorney and the transferring attorney. “The bond attorney will act on behalf of the financial institution that is providing the finance to the buyer. Once a buyer has received bond approval from the bank or finance provider, the bond attorney will register the bond in the name of the buyer for the specific property in question,” Goslett says. “A bond cancellation attorney acts on behalf of the current bondholder. Once guarantees have been provided for the outstanding bond amount, they will proceed to cancel the current bond on the property that is in the seller’s name.
Although the financial institution invariably nominates the bond and cancellation attorneys, in most cases the seller nominates the transferring attorney, who will handle the transfer of the property into the new owner’s name. In some instances the transferring attorney can also be nominated to act in the capacity of one of the other roles as well, which will further speed up the process.
According to Goslett, while the transfer procedure is usually without incident and should be a smooth process, it is vital to make sure that the chosen attorney has conveyancing experience. Conveyancing is a complex series of tasks that require extensive conveyancing knowledge, so choosing an attorney that is well versed in the property transfer process will ensure that minor problems do not become major issues. Most attorneys will be able to provide the service, although not all of them will have the same amount of specific experience with property transfers. “Due to the fact that, for the most part, the legal fees are based on the value of the property, the amounts charged will be fairly similar from one law firm to the next. So why not choose an attorney that specialises in property transfers and who has the required experience, especially considering that they will largely influence the length of time that the process may take?” asks Goslett.
The transfer process is required to satisfy the necessary criteria of several regulatory institutions such as the Financial Intelligence Centre Act (FICA), the Transfer Duty Act and the Value Added Tax Act for the South African Revenue Service (SARS) and the Municipal Property Rates Act.
Goslett says that buyers should prepare for the property transfer by getting the following documentation in order:
• A proof of address (not older than 3 months)
• A certified copy of your identity document
• Your income tax number.
• Declaration in respect of marital & solvency status
• Particulars concerning the identity of the attorney transferring the purchasers property if the purchaser is utilising the proceeds to pay for his purchase
• Particulars of the bond granted
These documents will be needed to meet the FICA requirements.
Goslett says that sellers can assist in expediting the transfer process by having the following documents in order:
• Declaration in respect of marital and solvency status
• Particulars of Bond Holder (account number)
• Valid Electrical Wiring Certificate
• Valid Electrical Fencing Compliance Certificates (if relevant)
• Valid Gas Compliance Certificates (if relevant)
• VAT Declaration (if applicable)
He notes that on average, the process takes around three months from the date of sale until the property is registered in the new owner’s name. However, certain external aspects can delay the process such as waiting for a stipulated condition in the contract to be fulfilled or obtaining a rates clearance certificate. South African law states that before a property can be transferred, it must have a rates clearance certificate from the local council that proves that all municipal charges and associated costs have been paid in full to the relevant parties. “As a rule of thumb the seller may need to pay for a few months in advance to obtain the clearance certificate. However, any credit on the account at the date of transfer will be refunded,” says Goslett.
When choosing an attorney, Goslett says that while extensive experience in the area of law for which you require their services is a critical element, it is also important that the seller is comfortable with their choice and trusts their attorney. “Working with a reputable, experienced attorney will ensure that the process is as quick and hassle free as possible,” Goslett concludes.