What you need to know about Conveyancing
What you need to know about Conveyancing:
Conveyancing is the transfer of a legal title of real property from one person, company, close corporation, or a trust to the registered new legal owner of an immovable property and includes the registration of a mortgage bond.
Who is a Conveyancer?
In terms of the Attorneys Act 53 of 1979, a conveyancer is a person who is duly admitted to practice as a conveyancer within any part of the Republic, such a person must also be a qualified admitted Attorney.
A Conveyancer will be responsible for ensuring contractual, financial and compliance is adhered to in his/her line of duty. In terms of the Deeds Registries Act 47 of 1937, no deed of transfer, mortgage bond or certificate of title or any certificate of registration of whatever nature mentioned in the Act shall be attested, executed or registered by the Registrar unless a conveyancer has prepared it.
In essence, property is one of the largest assets that a person may own or purchase. The transfer of property from one person to the other is particularly one of the most important contracts that is undertaken by individuals. Therefore, our law provides that only qualified conveyancers may attend to the transfer of property, by doing so, our land registration system is protected, as it is one of the best land registration systems in the world.
Documents necessary in conveyancing
After a sale agreement has been concluded between the Seller and the Buyer, a conveyancer will be appointed to effect the transaction in the Deeds Office. The conveyancer will make an appointment with both the Seller and the Buyer to obtain the copy of the sale agreement (to ensure that both parties have reached an agreement and it constitutes a valid sale agreement), copies of Identity Documents, marital status, proof of residential address (to comply with FICA and completion of affidavits confirming that the information supplied is true and correct).
Once the Conveyancer has collected the required information, he or she will be in a position to draft the following documents:
- Power of Attorney: a legal document (special or general) signed by the Seller in the case of a transfer, duly appointing the Conveyancer to act on his behalf in the transfer of the said property mentioned in the Power of Attorney. In the case of a mortgage bond registration, the Buyer will have to sign a Power of Attorney, duly authorizing the conveyancer to register the bond in favour of the Financial Institution that granted the loan.
- Deed Of Transfer: a legal document prepared by the conveyancer to be lodged at the Deeds office which will bear the description of the parties to the sale, description of the property, reasons for transfer of ownership and any conditions attached to the property, for registration.
- Mortgage Bond: a loan that is secured on immovable property granted by a Financial Institution to the lender (Buyer) in terms of which the legal document is presented to the Deeds Office for registration.
- Transfer Duty and Value Added Tax Declaration: The buyer and seller must sign this to confirm the purchase price, which is conveyed to the Receiver of Revenue for the calculation of transfer duty (normally paid by the vendor). VAT is applicable only if the seller is VAT-registered, in which case he must sign a VAT declaration. If VAT is payable, no transfer duty is payable.
When the above documents are ready, the Conveyancer will arrange an appointment for the signature of the documents. During the appointment, the Conveyancer will present his account to the Purchaser for settlement. (Although the seller by common law has to elect the conveyancer of his own choice, the purchaser will be responsible to settle the conveyancers account).
The Conveyancer will pay the necessary transfer duty to SARS (if transfer duty is payable) and apply electronically for a transfer duty receipt. The Conveyancer will furthermore pay all rates and taxes on the property in order to apply for a Rates Clearance Certificate.
On receiving the Transfer Duty receipt and Rates Clearance Certificate, the Conveyancer will draft the new Deed of Transfer and then lodge all documents via a correspondent in the Deeds Office for examination.
Simultaneously with lodgement of the transfer documents in the Deeds Office, all present mortgage bonds are to be cancelled and new bonds to be registered will also be lodged.
LODGEMENT AND REGISTRATION:
The deeds office is a government registry of immovable property and all rights in such property. The personnel in the deeds office will scrutinize all documents to ensure that they comply with all relevant legislation and regulations. When they are satisfied, the Conveyancer will be informed and transfer of the property can be registered in the name of the purchaser. The existing bond and new bond (if applicable) are registered simultaneously.