Article by listed Attorney Nanika Prinsloo
The role players in a property transaction have to work together to effect the final transfer of the property from the seller to the purchaser.
It is important to understand the different roles of each role player in a property transaction. In a property transfer transaction, the sale usually starts with the estate agent that the seller contracts with to pay a commission to upon the sale of the property. This article will shortly explain the role of each role player in a property transaction.
The estate agent usually contracts with the seller to sell the property on behalf of the seller and in return the seller will pay the estate agent a commission at a certain amount or percentage. You must be registered as an estate agent and have a valid fidelity certificate to be able to lawfully be entitled to the commission. If a person who is not a registered estate agent wants to sell a property on behalf of a person and negotiates a commission with the seller, then there must be a specific contract with specific wording to make provision for that.
The attorney who will handle the transfer of the property from the seller to the purchaser, is referred to as the conveyance or the transferring attorney. The SELLER usually has the right to appoint the conveyancer, but the parties can agree that the Purchaser can appoint his attorney as the conveyancer. The conveyancer is the “conductor” of the whole transaction and makes the arrangements with the other role players in a property transaction to finally orchestrate lodging at the Deed’s office of all the necessary documents.
Usually when a person buys a property, he/she applies for a bond to be able to purchase a property. The bank will then appoint its own attorneys from its panel to attend to the registration of the bond. A bond is registered over the property and the purchaser will sign stacks of documents with the bank and then with the banks’ attorneys. Once the documents are signed, the bank must give approval to their attorneys that the documents are in order and that the documents can be lodged. Even if the conveyancing attorney is ready to lodge their documents at the deeds office, they have to wait until the bond registration attorneys are ready to lodge. (Also see the bond cancellation attorneys below).
The Seller usually has a bond registered over his/her property so when the property is sold, the bond that is registered over it must be cancelled. The bank will appoint a firm of attorneys from their panel to cancel the existing bond of the Seller over the property. Sometimes the purchaser applies at the same bank for a bond that the seller’s bond is registered with, but the bank will most of the time appoint two separate attorneys as it is different departments in the bank who handle these applications.
Before any transfer documents can be lodged in a property transaction, the seller must obtain a transfer duty or VAT receipt. (If the Seller is registered for VAT, it will be a VAT receipt and if the Seller is NOT registered for VAT, he will pay transfer duty if the property is above a certain amount and once that is paid, SARS will issue a transfer duty receipt. Either the VAT receipt or the transfer duty receipt must be lodged with the other transfer documents.
The conveyancer must apply for a clearance certificate for the property. This certificate must be lodged with all the other documents. Problem is, your conveyancer may be very effective but the writer is sad to say that a lot of the times the municipality is not and the conveyancer can wait a very long time to obtain a clearance certificate. No use getting upset with your conveyance – once the application for the clearance certificate is lodged, the conveyancer is subject to the effectiveness (or absence thereof) of the municipality. Cape Town Municipality especially takes very long to issue clearance certificates in general. Since it is an essential document without which the transfer documents can not be lodged, there is nothing to do but to wait to receive it. The Seller must then pay the amount that the municipality wants for the clearance certificate. This usually includes calculation in advance of the rates and taxes and provision for services for 3 months. In some instances the rates can be calculated one year in advance.
If the property is a sectional title, the conveyancer must also obtain a certificate from the body corporate who will ask the seller to pay at least 3 months in advance of levies before they will issue the certificate.
The Seller must, as per the purchase agreement (or offer to purchase) obtain certain certificates, usually a plumbing certificate, and/or an electrical certificate, and/or a beetle certificate. The relevant businesses who specialise in providing these services must be contacted, usually by the Seller. Normally the estate agents arranges this for the Seller.
Once the conveyancer has obtained all the relevant documents and the bond registration and bond cancellation attorneys are ready, the conveyance arranges with the other 2 attorneys to lodge all their documents simultaneously at the deeds office. If all the documents are in order, the transaction is registered and the property is transferred from the name of the seller to the name of the purchaser.
One last role player in a property transaction is the Deeds office, who must issue a new Title Deed for the new owner (the purchaser) of the property. The Deed’s office must microfish and number the documents first and it usually takes about three months for the new Title Deed to become available.
This article written by Nanika Prinsloo of Prinsloo & Associates Attorneys and Conveyancers.