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Why do I need a conveyancer?

If you wish to enter into transaction relating to immovable property (i.e. land and buildings) in South Africa,there is a specific legal procedure that must be followed in order to have the title deed validly registered in your name. The procedure itself is known as conveyancing and is facilitated by highly specialised attorneys known as conveyancers.

The records of such property transactions are held and registered in one of seven Deeds Registries Offices located in: Pretoria, Johannesburg, Cape Town, Bloemfontein, Pietermaritzburg, Kimberly, King Williams Town, Vryburg and Umtata.

According to section 15 of the Deeds Registries Act 47 of 1937, no deed of transfer, mortgage bond, certificate of title or registration of any kind shall be attested, executed or registered by a registrar at the Deeds Registry Office unless it has been prepared by a conveyancer. It is thus necessary to procure the services of a conveyancer who is well versed in this specialized area of law. The process, subject to specific contractual obligations, are normally completed approximately 30 days from date of provision of the bank guarantees specified and referred to in the deed of sale.

The Process

Once a person decides to buy a house an offer to purchase (which contains information about the parties, the property and the purchase price) has been accepted, then the buyer or his attorney usually applies for a mortgage from his or her bank in order to finance the transaction. To begin registration of a transfer, a signed copy of the offer to purchase must be given to the transferring attorney i.e. the conveyancer.

The first task that the conveyancer must perform is to enquire as to the necessary guarantee required by the current holder/s of bonds over the property for cancellation of the bond. The bondholder - usually a financial institution – provides the required cancellation figure whilst simultaneously instructing its own attorneys to begin preparing for the cancellation of the current bond.

The second task of a conveyancer is to request a Rates Clearance Certificate from the local council. The local authority will calculate the amounts that are still outstanding on the property and it is the conveyancer’s duty to pay this outstanding amount. This document is very important as it must be included when the transfer deed is lodged with the Deeds Registries Office.

Once the bank has determined that the buyer is financially secure it then issues instructions to the conveyancer that he/she register the bond at the Deeds Registries Office. Once this instruction has been received then the conveyancer must obtain a Transfer Duty receipt from the Receiver of Revenue. If an attorney other than the conveyancer has the task of registering the bond then they will normally request the draft Deed of Transfer from the conveyancer.

If the bank has given the go ahead to register the bond then the conveyancer may begin to draft all documents relating to the transfer and obtain signatures from both the buyer and seller. At the same time the documents relating to the registration of the new bond must be drafted and signed by the attorney tasked with registering the new bond and must be signed by the buyer. Then guarantees are issued to the seller so that he/she may obtain a cancellation of the current bond over the property.

Only once the Transfer Duty receipt and the Rates Clearance Certificate have been received by the conveyancer, may he/she lodge it for registration in the deeds registries office. It may be necessary for three separate procedures to be submitted simultaneously at the deeds office, namely: The registration of the new bond over the property, the cancellation of the current bond over the property and the registration of the transfer of the property from the name of the seller to that of the buyer. Once lodged the documents are examined by officials of the Deeds Office who will either clear the documents or – if there is a problem – refer them back to the relevant attorney’s offices. Once approved the following steps must be followed to ensure a successful registration of the transfer:

  • Presents the guarantees for payment of the purchase price, which is then allocated towards payment of the existing bond in the balance in favour of the Sellers - which is the proceeds of the sale.
  • Adjustment and apportionment of the rates payable are made.
  • The local authorities must be advised of the registration.
  • The conveyancer will then forward the Title Deed to the bond attorney who holds this with the registered bond document.