Buying or Selling a House

When there is a signed Offer to Purchase (OTP), by both the Seller and Purchaser (Buyer), where immovable property is sold, ownership will only be transferred upon registration of the Title Deed at the Deeds Office.

The Buyer is generally responsible for:

• the payment of the Transferring Attorneys costs
• the Transfer Duty with SARS (if applicable), and
• the Bond Attorneys costs.

The Seller is generally responsible for:

• the payment of the Bond Cancellation Attorneys costs
• the cancellation figures of the existing bond
• the Clearance Figures from the Town Council
• the Clearance Figures with the Body Corporate / Homeowners Association (if applicable)
• the issuing of the Electrical, Gas and Solar Compliance Certificate (COC – a.k.a. Certificate of Compliance), and
• the Estate Agent commission.

When buying an immovable property, the Buyer is responsible for the payment of the Transfer Attorney’s fees, who is appointed by the Seller. This may cause the Buyer to feel that they have the discretion to appoint their own attorney, because they are responsible for paying the transferring fees. The seller would generally feel more protected by his/her own attorney to manage the important elements that are required to be met by the Buyer.

For example, the Buyer needs to raise the funds to:

• cover the purchase price, by way of a bond approval or deposit
• cover the transfer fees,
• meet suspensive conditions, and
• for the Seller’s attorney to ensure a speedy transaction and receipt of the purchase price.

It is therefore regarded that the Seller, as the owner of the property to be transferred, stands to lose more and has a stronger claim to the appointment of the conveyancer.

The Seller authorises the Transferring Attorney, by way of a Power of Attorney, to transfer the property to the Buyer and that is why, in terms of the Common Law, the Seller is entitled to nominate the Transferring Attorney. The Seller and Buyer may still agree to appoint the Buyer’s Transferring Attorney. However, should the Seller refuse, and even if the Estate Agent insist that their attorneys on panel are used, the Seller still has the final decision to use his Transferring Attorney.

It remains open for the parties to negotiate the appointment of the Transferring Attorney and include a clause to such effect in the Offer to Purchase and good reasons may exist which supports the Purchaser being entitled to appoint his Transferring Attorney.

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