Understand the Process
Buying or selling a property can be an extremely daunting process – and not something most people do on a regular basis. With a residential property most likely your most valuable and important asset, we want to help you understand the process and potential pitfalls when it comes to buying and selling property by looking at the role of the estate agent and the transferring conveyancer.
THE ROLE OF THE ESTATE AGENT
Unless you have chosen to sell privately, you would generally appoint an estate agent to promote the sale of your property and to introduce potential buyers. It is important to note that when appointing an estate agent, the seller must disclose everything relating to the property. The estate agent can then give all of the correct information, warranties and undertakings related to the property to the potential buyer.
It is also important to exclude moveable fixtures or fittings that will not form part of the sale of the property.
For example, a beautiful water feature in the garden or a Wendy House in the back that you wish to keep, must be excluded. Also point out the general state of the property, like an alarm or sprinkler system. Indicate to the agent whether it is in working order or not. You do not need to fix defects, but you have to make the buyer aware of the fact that there are defects, and that the property is sold “as is”. The general rule is that the buyer, unless advised otherwise, is entitled to accept that everything she or he sees is part of the sale and in working order.
THE ROLE OF THE TRANSFERRING CONVEYANCER
The Transferring Conveyancer is responsible for the transfer of the property through the relevant Deeds Office, and securing the purchase price on behalf of the seller. The Conveyancer is obliged, at all times, to act in the best interests of both the seller and the buyer and to enforce the provisions of the sale agreement. This ensures that all parties comply with their contractual obligations. In the transfer of a property, it is usually the seller’s prerogative to choose the transferring conveyancer. This is because the buyer is generally the party with the most obligations, like securing the funds to purchase for the property.
If the seller has a bond for the property and the buyer is taking over the bond, in order to secure the purchase price, there will generally be three sets of Conveyancers in a transfer transaction: the Transfer Conveyancer, the Bond Conveyancer and the Conveyancer attending to the Bond Cancellation.
The Transfer Conveyancer:
As mentioned above, the Transfer Conveyancer is responsible for effecting the transfer. In order to do this, the Transfer Conveyancer must liaise and link the transfer with the Bond Conveyancer and the Bond Cancellation Conveyancer. This ensures that the cancellation of the seller’s bond is secured and that the balance of the purchase price is secured through the buyer’s bond.
The Transfer Conveyancer will also ensure that Transfer Duty is paid to SARS and will obtain a valid clearance certificate from the City Council (and the Managing agents if applicable) to ensure that when the buyer takes transfer, all rates, taxes and levies are up to date at time of registration of transfer.
The Bond Conveyancer:
The Conveyancer attending to the Bond registration is usually appointed by the bank granting the loan. They have a panel of approved attorneys for this purpose. The Buyer may request the appointment of a certain Conveyancer, but the banks do not always allow this.
The Bond Cancellation Conveyancer:
The Bond Cancellation Conveyancer is appointed by the bank which holds the bond over the seller’s property. This Conveyancer may be the same Conveyancer as the Transfer Conveyancer. The Bond Cancellation Conveyancer will ensure that the amount outstanding under the current bond, is secured by receiving the guarantees from the Transfer Conveyancer.
This entire process is coordinated and managed by the Transfer Conveyancer. The most important objective here is making sure that everyone’s debts are secured before registration of transfer into the buyer’s name. Once this is done and all certificates have been obtained, the Transfer Conveyancer will arrange with the other 2 Conveyancers to lodge to the relevant Deeds Office.
All three sets of documents together with the original title deeds and mortgage bonds, will be linked in the Deeds Office. The documents will then be examined and if the examiners are happy with the documents they will pass the documents for registration.
After the registration the Deeds Office will update their records and the buyer will be noted as the new owner of the property. South Africa has one of the most comprehensive property registration systems in the world and it is a complicated process.
With the right conveyancer guiding you through the process, it should however be a pleasure to obtain a new property!