The process of transferring property

Select the best attorney for the job

In the process of selling a property, a vital aspect that the seller needs to consider is selecting the right attorney for the job, according to Adrian Goslett, CEO of RE/MAX Southern Africa, who adds that choosing the right attorney with specific experience in the transferring of property can expedite the process and make sure that it happens within the shortest possible time.

© silverzo - Fotolia.com

"During the transfer and registration process it is common practise that three different conveyancers are used, namely the bond attorney, the bond cancellation attorney and lastly the transferring attorney," Goslett explains. "Each of the attorneys has a specific role that they will play in the process. For example, the bond attorney acts on behalf of the bank or financial institution that is providing the finance to the purchaser. Once the buyer has been approved for finance, the bond attorney is responsible for registering the bond in the buyer's name."

He adds that the role of a bond cancellation attorney is to cancel the bond of the current bondholder on the property. The buyer's financial provider will issue a guarantee for the outstanding bond amount. Once this has happened, the bond cancellation attorney will proceed to cancel the current bond on the property, which is in the seller's name. In most cases, the financial institution will appoint the bond and cancellation attorneys; however it is normally the seller that is able to nominate the transferring attorney. The transferring attorney will handle the final stage and co-ordinate the simultaneous lodgement of the deeds for transferring the property from the seller's name into the buyer's name. In some occasions it is possible to nominate the transferring attorney to act in the capacity of one of the other roles as well, which will further speed up the process.

"It is rare that there will be too many issues with the transfer process and it is generally a fairly smooth procedure, provided of course that the selected attorney has conveyancing experience," says Goslett. "The majority of attorneys will be able to provide the service, however not all will have vast amounts of experience in the conveyancing field. It is always advisable to use an attorney that handles conveyancing on a daily basis as it is a complicated series of tasks that requires in-depth knowledge around the process."

As there is a recommended rate for the legal fees charged for the transferring process which is based on the value of the property and should be fairly similar from one firm to the next, it makes sense to rather find the best attorney for the job. Extensive experience in this area of law for which you require their services is a critical element, however 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.

External factors could postpone the process

"On average the process can take around three months, starting from the date of sale and ending with the property being registered in the new owner's name. That said, there are a few external factors that could postpone the process. These could include obtaining clearance certificates or the fulfilment of a stipulated condition in the contract. According to South African law, a property can only be transferred once all municipal charges and associated costs have been paid in full to the relevant parties. Once this is done, a rates clearance certificate will be issued by the local council. The seller may be required to pay a few months in advance to obtain the certificate, however any credit on the account at the date of transfer will be refunded," says Goslett.

Documentation

He notes that 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 Value Added Tax Act for SARS and the Municipal Property Rates Act.

According to Goslett, buyers can prepare for the property transfer by getting the following documentation in order:

• A proof of address (not older than three months)
  
• A certified copy of their identity document
  
• Their income tax number
  
• Declaration in respect of marital and solvency status
  
• Particulars concerning the identity of the attorney transferring the purchasers property if the purchaser is using the proceeds to pay for his purchase
  
• Particulars of the bond granted

These documents will be needed to meet the FICA's requirements.

Sellers can also assist in accelerating 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)

Goslett concludes, "Selecting the right attorney and having all the necessary documentation at hand before the start of the process will ensure that everything progresses without incident."