Property and conveyancing:
In the light of continued legislative changes we at Werner Roos & Immelman attorneys undertake specialist up to date support with you our client’s buying and or selling of immovable property and conveyance transactions. We will assist you from the sales agreement or deed of sale, whether it is commercial or residential, to the property transfer and registration andthe registration of mortgage bonds and other securities. As buying of property is a big financial undertaking and responsibility it is advisable to use a trusted attorney’s firm like Werner Roos & Immelman attorneys to undertake the drafting and registration of servitudes, certificates of the registered title, the certificates of the consolidated titles, general plans, the registration of townships and sectional title schemes, property subdivisions and consolidations. We will oversee the deeds office searches and supply you our client with advice concerning the legislative and regulatory aspects on property joint ventures, construction agreements and lease agreements.
What does it entail to buy or sell immovable property? Here follows a brief step by step description of the proses as a whole including the role of your attorneys at Werner Roos & Immelman.
Step 1: The deed of sale or sales agreement:
As buying or selling immovable property is a big financial and stressful undertaking it is best to do proper homework in finding the best property that you can afford in the right area with a good potential resell value. Make a list of all your requirements from the property you are seeking to avoid making emotional decisions. The estate agent will explain all the conditions of sale to both parties. Ask questions about everything that you need clarity about. Make sure that you do understand all the terms and conditions before you sign the agreement. You can take the sales agreement to your attorney to verify the sales agreement as legitimate and fair. It might save you a lot of money and trouble. Remember that once the agreement of sale is signed it is a binding contract to both the buyer and the seller.
The sales agreement will contain certain conditions of sale that must be fulfilled beforethe transfer process can begin. It is usual for the buyer to have to obtain a loan or a bond from the bank with which to buy and pay for the property against the security of the property to be purchased. This is usually one of the conditionsthat the buyer will obtain such a bond or loan from the bank and in failing to do so the sales agreement is cancelled. The other common condition of sale is that the sales agreement is subject to the sale of the buyer’s property. The buyer is selling his/ her property and needs the money from the selling of that property to pay for the new property. The transfer of the buyer’s property will have to be registered before or simultaneously with the transfer of the seller's property. The seller’s conveyancing attorneys will correspond closely with and will obtain an undertaking from the buyers conveyancing attorneys who are attending to the transfer of the buyer’s property to pay over the money of that sale upon registration.
Step 2: The cancellation of the existing bond:
It is very possible that the seller still owes money on his/her loan or bond from the bank. This bond will have to be cancelled at the bank at the same time the property is transferred to the buyer. The seller’s bank will decide which conveyancing attorney will oversee the cancellation of the bond.The conveyancing attorney must secure the original title deed of the property from the seller's bank that held the title deed as security. The seller's bank will supply the conveyance attorney with the exact amount still owing by the seller under his/her bond. When the property is registered in the name of the buyer and the seller's bond is cancelled, the seller's bank will be paid the outstanding amount and the balance of the purchase price will be paid to the seller. The cost of cancelling the bond is payable by the seller and is deducted from the selling price before the seller receives the balance. If the conveyance attorney is not the same conveyancing attorney who is attending to the transfer of the property, then the transferring conveyancing attorney must correspond closely with the cancellation conveyancing attorney to make sure that the transfer documents and the cancellations documents are lodged in the deeds office simultaneously.
Step 3: The registration of a new mortgage bond:
In the case of the buyer also obtaining a bond or loan from the bank with which to pay for the property, this bond will also have to be registered simultaneously with the registration of the transfer and the cancellation of the seller's bond.The bank which is granting the bond will appoint the conveyancing attorney who will oversee the registration of the bond. If it is not the same conveyancing attorney who is overseeing the registration of the property, then the transfer conveyancing attorney must cooperate with the bond conveyancing attorney to make sure that the bond and transfer documents are drawn up and lodged at the deeds office together. If the bank appoints the same conveyancing attorney who is overseeing the transfer, then the process is much quicker and simplified because the bond and transfer documents will be drawn up and signed at the same office. The conveyancing attorney attending to the transfer will obtain guarantees from the buyer’s bank to make sure that the money being lent to the buyer is available on the date of registration of the bond. The bank will not allow the bond to be registered until all the conditions are met and it is in the interest of the buyer to comply as soon as possible with the bank's requirements. Various banks have different conditions which must be fulfilled before the bond can be registered. These conditions will include the signing of various documents by the buyer; obtaining insurance on the building(s) that is on the property; obtaining and ceding a life assurance policy and the signing of surety if needed.
Step 4: The transfer of the property:
In order for the conveyancing attorney to initiate the transfer documents, he/she will require the seller’s and buyer's details with copies of their Identity documents, marriage certificates, Ante nuptual contracts, divorce orders, and all other documentation that might be required. Upon receiving these documents together with the original title deed, the conveyancing attorney will prepare the transfer documents and his pro-forma account. The seller and buyer will then be asked to sign the documents and the buyer must pay the conveyancing attorney's costs.
These costs are made up of the following fees:
- The Conveyance attorney’s fees are calculated in accordance with a tariff issued by the law society.
- The transfer duty is a tax payable to the state on all transfers of immovable property and is calculated as a percentage of the purchase price. No transfer can be registered until the Deeds office has proof that the transfer duty has been paid.
- The buyer will be responsable for rates and taxes at the local authoroty from the date of registration of the property in his/her name. Approximately three months payment in advance will be required by the conveyancing attorney to enable him/her to obtain a rates clearance certificate from the rates department.If the property is a sectional title unit, then a levy clearance certificate must also be obtained.The transfer can not be registered until the deeds office has proof that the levies,rates and taxes have been paid.
Step 5: Registration of the transaction and transfer:
The transfer, bond and cancellation documents must be lodged at the deeds office simultaneously to facilitate simultaneous registration. If different conveyancing attorneys are attending to the registration of the buyer's bond, the cancellation of the seller's bond and/or the transfer of the property, then all the conveyance attorneys must communicate and work together. From the date of lodgment, it normally takes a number of days until date of registration. The buyer and seller are notified on the day of registration and the seller is paid the following day. Both the buyer and seller are informed of the final accounts reflecting the final adjustments between the buyer and seller in respect of agreed rates, levies, occupational rent and other mutual agreements.
The deeds office property registration procedure.
Step 1: Lodgment
Lodgment or receiving of the deeds at the deeds office.
The deeds are checked by lodgment clerks.
Lodgment clerks do data capturing as well as linking of the deeds.
After checking the deeds are sent to DOTS (Deeds Office Tracking System) allowing a search to be conducted to track the process of the deeds through the deeds office.
Step 2: Sorting of Deeds (Junior Level)
Deeds are sorted and distributed to various examiners for first examination.
First examinations are usually done by junior examiners.
Step 3: Sorting of Deeds (Senior Level)Deeds are sorted and distributed to senior level.
Senior examiners may pass or reject deeds.
Step 4: Final Checking
Assistant registrars monitors rejected deeds and decide whether to pass or reject the deeds. If a deed is rejected, it gets returned to the conveyance attorneysthat has to repeat the whole process after recifiying the problem.
Deeds that have passed the scrutiny are sent to the preparation room.
Step 5: Preparation of Deeds
Deeds are prepared by conveyancing clerks.
Final checks for interdicts are conducted.
Step 6: Execution
The deeds are registered.
After registration the deeds are taken to numbering.
Step 7: Data Capture
The deeds are added to the database. From this point the information is available electronically and can be searched.
Step 8: Updating of Registers
The deeds office registers are updated.
Step 9: Microfilming
The deeds are microfilmed or scanned. Now it is possible to order an electronic copy of the title deed.
Step 10: Delivery
The deeds are delivered back to the conveyancing attorney.
Some reasons why it sometimes takes longer for a deed to be registered:
Degree of difficulty of the transaction.
Too much workload for the examiners.
Incorrect information on the deed.
Interdicts that have to be uplifted.