Q: To whom do I pay the deposit?

A: The Purchaser’s deposit can be paid either to the estate agency or the conveyancers appointed to handle the transfer. They both have trust accounts where your money will be held pending the registration of transfer.  If paid to the Conveyancer, the funds are held in an interest-bearing account in terms of Section 86(4) of the Legal Practise Act (28 of 2014), with the interest accruing to the Purchaser, pending registration of transfer of the Property, into the name of the Purchaser.  Parties must stipulate in the offer to purchase where the deposit must be paid and as well as the date the deposit is due.

If any of the suspensive conditions to which the offer is subject to are not fulfilled, the deposit, together with interest thereon, shall be refunded to the Purchaser

Q: What are suspensive conditions on a Deed of Sale?

A: A suspensive condition is an uncertain future event. The Offer to Purchase is thus subject to the happening of this uncertain future event. Should the Purchaser fail to comply with the suspensive conditions pertaining to his/her specific offer within the allotted time frame, the Offer to Purchase becomes null and void and is of no effect.

An example of a suspensive condition is that the Purchaser should obtain approval of home loan finance for a specific amount, before a specific date. Should the loan be approved for a lesser amount, the Purchaser has the option of amending the contract (with an Addendum to the contract) with details of how and by when the balance of purchase price is to be paid).  Should the loan not be approved, the contract does not come to effect.

Q:  What is an Addendum to a Deed of Sale

An addendum refers to a document usually added to the original contract. The addendum includes additional information which can modify, clarify, or override the original terms and agreement of the contract.

The Addendum is signed, witnessed, and dated by both the Sellers and Purchasers, detailing any changes to the original contract.

Q: What is a guarantee?

A: A guarantee is a document issued by a registered South African Bank that guarantees the payment of funds upon the happening of certain events. On registration of transfer of the Property from the Seller to the Purchaser in the Deeds Registry, the conveyancer will notify the issuer of that guarantee of the registration. The guarantee is then payable and funds are paid in terms of that guarantee into the nominated trust account.

Q: Who appoints the Transferring Attorney/Conveyancer?

A: When buying a property, the purchaser is responsible for the transfer fees of the attorneys, who are appointed by the seller.  The Seller usually appoints a conveyancer to attend to the transfer of the do property.   This is because the seller authorizes the transferring attorney, by way of a power of attorney, to transfer the property to the purchaser. The parties may still agree to appoint the purchaser’s transferring attorneys. However, should the seller refuse, the transferring attorneys of the seller will have to be used. In some instances, the agent insists that their attorneys on panel are used. The seller still has the final decision.

The purchaser is responsible for paying the transferring fees, and therefore they feel they have the discretion to appoint their own attorney. However, the purchaser is required to raise the purchase price by way of a bond approval or deposit, cover the transfer fees and meet suspensive conditions, and the seller would generally feel more protected by his attorney managing these important elements and ensure a speedy transaction and receipt of the purchase price. The transferring attorney has to ensure that the purchase price is secured and available and a purchaser’s attorney may be persuaded to rely upon assurances of his client that the money is available, with dire consequences for both purchaser and attorney should this prove to be incorrect. In short, it is generally regarded that the seller, as the owner of the property to be transferred, stands to lose more and therefore has a stronger claim to the appointment of the conveyancer.

As confirmed, it remains open for the parties to negotiate the appointment of the transferring attorney and include a clause to such effect in the sale agreement and good reasons may exist which supports the purchaser being entitled to appoint the transferring attorney. However, regardless of who appoints the Conveyancer, the Conveyancer owes a duty of care to both parties and must represent both parties fairly.

 Q: What are the costs involved in purchasing a property?

A: The purchaser is usually liable for the following costs:

  • Transfer Costs

Calculated according to a sliding scale, based on the purchase price, as per the guidelines set by the Law Society Table of Costs and our cost calculator is available on our website www.nsvattorneys.co.za

 

  • Transfer Duty

Payable to SARS – Transfer Duty will only be applicable where the purchase price or the value of the property (whichever is the greater) is in excess of 

R1 000 000-00

Transfer Duty is calculated according to a sliding scale as per the guidelines provided by SARS on the relevant purchase price and required to obtain the Transfer Duty Receipt from SARS

No Transfer Duty is payable when a seller is VAT registered and the sale is part of the seller’s VATable portfolio.  In these instances, the Purchase Price will either be VAT inclusive of VAT will be added to the Purchase Price depending on the wording of the Offer to Purchase, when relevant

 

  • Bond Costs

Payble to the Attorneys, attending to the registration of a bond, where a bond has been applied for at the bank to secure either the full purchase price or the balance of the purchase price.

Bond costs are calculated according to a sliding scale based on the value of the bond to registered, as per the guidelines set by the Law Society. Our cost calculator is available on our website www.nsvattorneys.co.za

 

An initiation Fee, as stipulated by the relevant bank, and clearly stipulated in the Letter of Acceptance, is also payable to the Bank.

 

  • Occupational Rental 

Payable when the purchaser takes occupation of the property, prior to registration.

Amount due will be as per the signed Offer to Purchase, signed by all the parties, payable in advance.

Any pro-rata refund due to the Purchase on occupation rental paid, if applicable, will be refunded after the transfer of the property has taken place.

 

  • Levies 

Cost of obtaining a Levy Clearance  Consent for transfer in case of Sectional Title Transfer.

The pro-rata portion payable by the purchaser from the date of registration of the property into his name will be collected as part of the monthly levies account payable to the Body Corporate.

Special Levies – It will be stipulated in the Offer to Purchase, should any special levies bye due/payable on a Sectional Title Transfer.

The Body Corporate will calculate the pro-rata payment of special levies to be paid by the seller and purchaser prior to registration of the transfer.

 

  • Other

Cost of obtaining the Rates Clearance Certificate from Council.

Cost of obtaining a Home Owner’s Association Consent for transfer, when applicable (this will be clearly stipulated in the registered Title Deed where a  Home Owners Association is applicable)

 

Q: What costs are involved in selling a property?

 

  • Agent’s Commission

Payable from the proceeds of the sale on date of transfer, as per the agreed commission structure of the Offer to Purchase, signed by all the parties

It is important to note that the commission payable, could either be VAT inclusive of VAT exclusive, which should be clearly stipulated in the Offer to Purchase

 

  • Cancellation of Bond

90 Day Penalty Interest – Always ensure that the bank is provided with notice of your intention to cancel the bond, when you are in the process of selling your property, as 90 days Penalty Interest will be added to the cancellation figures issued by the bank.

The 90 Day Penalty interest is calculated from the day the bank is informed of the cancellation, at the current bond interest rate for a period of 90 days, on the total outstanding settlement amount, inclusive of an extra month’s instalment and any annual insurance or Assurance that is due within this period.

Should your bond be canceled prior to the 90 day period expiring, the pro-rata penalty interest will be calculated on the remaining number of days still applicable on the 90day penalty period.

 

  • Bond Cancellation Fee

The cancellation of any existing bonds registered over the property being sold can only be attended to by an Attorney Firm appointed by and representing the Bank.

The cancellation fee is applicable even if the bond has been fully paid up.

 

  • Rates and Services

Payable to the Municipality and cased on the current outstanding amount, inclusive of arrears. Provision is also made for 4-month advance payables (when payable to the City of Cape Town) on all applicable services, and any credit due to the Seller once the transfer has taken place will be refunded to the seller by the Municipality.

Rates figures are payble in order for the Council to provide the Transferring Attorneys with the Rates Clearance Certificate over the property, in order to register at the Deeds Office.

 

  • Levies and Special Levies

Special Levies – It will be stipulated in the Offer to Purchase, should any special levies be due/payable on a Sectional Title Transfer.

The Body Corporate will calculate the pro-rata payment of special levies to be paid by the Seller and Purchaser prior to the registration of transfer.

 

  • Compliance Certificates

Electrical, Beetle, Plumbing, Gas en Electric Fence compliance to be provided by the seller, whichever is applicable.

All additional work or repairs that need to be completed for the issuing of the Compliance Certificates, will be for the seller’s own account.

 

  • Other

Any repairs contained in the Deed of Sale will need to take place prior to the registration of transfer.

 

Lost Title Deeds – should the original Title Deed on the property be misplaced on un-bonded properties, an application for the Certified Copy of the Title Deed must be applied for at the Deeds Office

 

PLEASE NOTE: As of 1 January 2020, the process for the application for lost Title Deeds have changed, in that the notice for publication to be signed by the Registrar of Deeds is returned to the conveyancer after application, who will place an advertisement in the local newspaper that a copy of a title deed has been applied for and that any objection must be lodged with the Registrar of Deeds, within a two week inspection period.

Upon the lapsing of the two-week period, and should no objections have been received, the copy of the title deed will be issued to the conveyancer, who will then continue with the usual lodgement process.

 

There is an admin fee payable should funds have to be bridged to pay for the rates figures on behalf of the seller, which will be refunded from the proceeds of the sale, on the date of transfer.

         

Q: Can transfer and bond documents be signed overseas and if so what is the procedure?

A: There are special authentication requirements to be met when a document, to be used in South Africa, is signed outside South Africa.  These include the documents involved in a property transaction.

Depending on the country where the document is signed, one or more options exist.  Follow the below guideline carefully as non-compliance will require re-signing and delay the transaction.  Remember, in addition, that:

  • Documents must be signed clearly and in black ink;
  • Where a document consists of more than one page, the first page must be initialed in the bottom right-hand corner by all the parties and witnesses, and the full signature must appear on the last page.

Documents can be authenticated, depending on the country as follows:

THE GENERAL RULE FOR ALL COUNTRIES

In terms of High Court Rule 63, documents must generally be signed by the parties in the presence:

  • The head of the South African diplomatic/consular mission;
  • A person in the administrative or professional division of the public service serving as a South African diplomatic consular abroad;
  • Any government authority of such foreign country charged with the authentication of documents;  or
  • The consul-general, consul, vice-consul, or consular agent of the United Kingdom in that foreign country.

An authentication certificate, signed by the above person, must be attached to the documents.

AN ADDITIONAL OPTION FOR CERTAIN COUNTRIES

Botswana, Lesotho, Great Britain and Northern Ireland (England, Ireland), Swaziland, Zimbabwe

In these countries, it is sufficient if the document is signed by the parties in the presence of a Notary practicing in that country.  The Notary must identify the signatures, sign the document, and affix his/her seal of office to the documents.

Member states of THE HAGUE CONVENTION

In these countries, it is sufficient if the document is signed by the parties in the presence of any South Africa diplomatic or consular agent in the member country.  The document must be authenticated by an Apostille, issued and signed by the above person.

Q: What is occupational rent?

A: Occupational rent typically comes into play when a buyer moves into the property before transfer and registration have taken place, or a seller remains in occupation of the property for a period after that point. Occupational rent is a form of financial compensation for the use of a property that the party does not own.

Q: If I move into my new property before registration of transfer, to whom do I pay the Occupational Rent?

A: You could pay the occupational rent to the estate agent or the conveyancing attorney. They will usually ensure that it is paid into the seller’s bond account or directly to the seller.

Q: What if I have lost my original Title Deed?

A: The Deeds Office keeps a record of all property transactions. If a title deed is destroyed or lost, the application can be made to the deeds office for a duplicate original of the deed, at a fee. 

PLEASE NOTE: As of 1 January 2020, the process for the application for lost Title Deeds have changed, in that the notice for publication to be signed by the Registrar of Deeds is returned to the conveyancer after application, who will place an advertisement in the local newspaper that a copy of a title deed has been applied for and that any objection must be logged in with Registrar of Deeds, within a two week inspection period.

Upon the lapsing of the two-week period, and should no objections have been received, the copy of the title deed will be issued to the conveyancer, who will then continue with the usual lodgement process.

 

There is an admin fee payable should funds have to be bridged to pay for the rates figures on behalf of the seller, which will be refunded from the proceeds of the sale, on the date of transfer.

Q: What are Compliance Certificates and who is obligated to provide them?

A: There are five certificates that may have to be supplied to the Purchaser when selling your house, namely, electrical, beetle, gas, water/plumbing, and electrical fence. It is the Seller’s responsibility to pay for these certificates and to fix anything required in order to obtain the certificates.

Some of these compliance certificates are required under National Regulations (e.g. your electrical certificate and your electrical fence certificate) while others are required in terms of Municipal By-laws (e.g. Cape Town’s water certificate requirement), and others still are required either by Banks before providing finance of have become standard practice (e.g. your beetle certificate).

Electrical Certificate

In terms of the provisions of the Electrical Installation Regulations which came into effect in 2009 under the Occupational Health And Safety Act (No. 85 of 1993), it is compulsory for the seller of a property to be in possession of a valid Electrical Certificate of Compliance (ECOC).

The good news is that the ECOC is valid for a period of two years (you can sell your house within 2 years of buying it and won’t need to get a new ECOC, provided that no electrical work has been done during that period) and it’s only necessary to have the property inspected again for a new ECOC when you sell your property.   In other words, if you’re going to keep your property for a number of years you don’t need to keep renewing the ECOC.

The purpose of the ECOC is to verify that the electrical work and installations that have been completed on the property are up to standard in accordance with the regulations as required by the South African National Standards.

The ECOC covers distribution boards, wiring, earthing and bonding of all metal components (include antennae and satellite dishes), as well as wall sockets, light switches, and the isolators of fixed appliances, it doesn’t cover the fixed appliances themselves (geysers, stoves, motors, fans, under-floor heating).

Your electrician might require certain remedial work to be done at the property prior to issuing the ECOC. e.g. fix some wiring; change certain plugs; earth the geyser and stove. All of those charges will be for the seller’s account.

Electric Fence Certificate

If you’ve installed electric fencing as a security measure around your property, you’ll need an Electrical Fence System Compliance Certificate when you sell your property. This is a separate certificate from the electrical certificate mentioned above since it falls under the provisions of a separate set of regulations: The Electrical Machinery Regulations of 2011 (also issued under the Occupational Health and Safety Amendment Act, No. 181 of 1993.).

If you are not intending to sell your house and your electric fences which were installed prior to 1 October 2012 then you don’t need to obtain an electric fence certificate. If your electric fence was installed after 1 October 2012 then you SHOULD already have such a certificate.

Either way, if you have an electric fence and you want to sell your house you’ll need a compliance certificate. As with ECOCs, your electric fence certificate is valid for 2 years.

Water Installation Certificate

If your property is situated within Cape Town’s municipal area, you’ll need to know that the City’s Water By-law (which came into effect in 2010) requires you to be in possession of a Certificate of Compliance of Water Installation before the transfer of your property can take place.

The purpose of the water installation certificate is to ensure that water wastage is limited (e.g. check washers on taps to stop leaks); to protect buyers both from latent defect claims and from high water bills due to leakages.

Amongst others, the certification covers the water meter (does it start registering when a tap is open, and stop completely when all taps are closed?); the correct installation of water cylinders; and the correct discharge of storm water (which mustn’t go into the sewerage system). It also ensures that the potable water supply is completely separate from any grey water or groundwater systems.

It is important for buyers to bear in mind that a water installation certificate is not a plumbing certificate, and that it doesn’t cover all aspects of the home’s plumbing – nor does it cover any leaks from waste or sewer water or drainage.

Gas Compliance Certificate

If your home is fitted with any gas appliances (e.g. gas stove, gas fireplace), you are going to need a Gas Certificate of Conformity in order to comply with the Pressure Equipment Regulations of the Occupational Health and Safety Amendment Act (the regulations came into effect on 1 October 2009).

This certificate is valid for a period of five years. It certifies that your gas installation is in a safe, working condition, that emergency shut-off valves have been correctly installed, and that the system is free of leaks.

Beetle Certificate

The beetle certificate has become standard practice and it is often a condition written into the sale agreement for properties in coastal areas – although it isn’t usually required for sectional title properties or where the property is situated inland where beetle and wood borer problems are less common. The beetle certificate shows that your property has been inspected and found to be free of the beetles or woodborer that attack structural timber.

Even if the seller decides that this requirement should be waived in the sale agreement, the seller’s bank or insurance company will often require a beetle clearance certificate for a property prior to providing finance or insurance for the property.  This certificate is valid for six months.

It is therefore important that the purchaser finds out if their bank/insurance company requires such a certificate, and if so, then provision for it should be included in the sale agreement.

Legally, there is no law or regulation which requires a beetle certificate.

Q: What is the Deeds Office and what happens there?

A: The Deeds Office is where the Government keeps a record (“Deeds Registry”) of all Title Deeds issued (registered) by it. There are a few Deeds Offices in South Africa, normally one in each province. All documents are lodged simultaneously in the Deeds Office by arrangement with all attorneys concerned. The examiners in the deeds office scrutinize the documents to ensure that they comply with all relevant legislation and regulations. When they are satisfied, they inform the conveyancer that the transaction is ready for registration. The Deeds Office takes approximately 2-3 weeks to process the documents before they are ready for registration.

Q: What does it mean when a matter is lodged in the Deeds Office?

A: After all the documentation has been signed and the costs paid, the transfer, new bond, and cancellation bond documents are prepared by the respective attorneys for lodgement in the Deeds Office. All the documents are lodged in the Deeds Office by arrangement with the attorneys concerned.

Q. How many conveyancers does it take to transfer a property?

 In a transfer transaction, there is usually more than one Conveyancing Attorney involved, who each play different roles. 

  1. The Transfer of the property from the Seller to the Purchaser
  2. The Registration of a bond for a Purchaser;
  3. The Cancellation of the Seller’s existing bond over the property


In the instance where you are the Purchaser of a property, there are two roles that a Conveyancer can play in your transaction. Firstly, there's the Transfer Attorney, who will request you as the Purchaser to pay the transfer fees and sign your transfer documents at their offices. They are appointed by the Seller, but they act in both the Purchaser and the Seller’s interest during the transaction. The Transfer Attorney facilitates the entire transfer process, and you will be in communication with them throughout the transaction. They also liaise with all the other attorneys who may be involved in the transaction.

Secondly, as the Purchaser, if you approach a bank to finance the property and your bond application is granted, you will be appointed a Bond Attorney. The Bond Attorney is appointed by the bank from their Panel of Attorneys, and you will sign your bond documents at their offices. As the Purchaser, you can advise your bank that you would like your bond instruction to go to the law firm of your choice, which they may consider. The Bond Attorney will also request you as the Purchaser to pay the bond registration fees, which is in addition to your transfer fees.
 
The Bond and Transfer Attorneys respectively may be from the same law firm, or your transaction may be dealt with by two different firms.

The Seller may also interact with a Bond Cancellation Attorney if they have an existing bond to be canceled. The Bond Cancellation Attorney is appointed by the bank to assist in canceling the existing bond over the property, as the property will not be able to be transferred with any existing debt. The Seller will be responsible for the Bond Cancellation Attorney's fee.
 
When the Transfer, Bond, and Bond Cancellation Attorneys are ready to send your matter to the Deeds Office for registration, they liaise with each other and indicate to the Deeds Office that they are all linked to the transaction. The documents are then all lodged simultaneously, so that transfer, registration of the Purchaser’s bond, and cancellation of the Seller’s bond all occur on the same day.

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