Transfer of Immovable Property

The transfer of property is when the ownership of a property is moved from one person to another person. This happens when a property is sold or when the owner of the property dies and leaves the property to another person.

When a purchaser makes an offer to buy the property of the seller, and the seller accepts the offer of the purchaser, an agreement of sale comes into existence. The payment of the purchase price may be made in cash or by obtaining a bond.

The agreement of sale may provide for a deposit being payable by a certain date. However, the payment of a deposit is not a requirement in law, rather a gesture in good faith by the purchaser.

Once the apply for a loan, and the purchaser’s loan application has been approved, a bond registration attorney will be appointed by the bank to register a mortgage bond over the property as security for the bank. The transferring attorney will liaise with the bond registration attorney to request guarantees for the purchase price and to arrange the simultaneous registration of the transfer and the mortgage bond.

There are various documents that are required during the transfer process depending on the nature of the transaction:

• Bond cancellation figures in respect of the seller’s existing bond over the property.
• Rates clearance figures from a local municipality.
• Levy clearance figures from a body corporate or homeowner’s association. If applicable with Sectional Titles.
• Transfer duty receipt or exemption certificate from SARS.

The transferring attorney will prepare the transfer documents to be signed by the seller and the purchaser. Both parties will sign various documents, including the FICA affidavits confirming their personal particulars and a SARS transfer duty declaration outlining the nature of the transaction and indicating whether any transfer duty is payable.The seller will also sign a Power of Attorney to pass the transfer, an important document that will be lodged in the deeds office authorising a conveyancer to appear before the Registrar of Deeds and pass the transfer of the property to the buyer on behalf of the seller.

During the transfer process, the purchaser will pay the transfer costs to the transferring attorney which will include the transfer duty payable to SARS, if applicable. The seller will be liable for payment of the municipal and levy-clearance figures in order to get the necessary clearance certificates. The seller is also responsible for arranging the issuing of the electrical compliance certificate, gas compliance certificate and electrical fence certificate, if applicable.

Once all the required certificates are obtained by the transfer attorneys, and the bank’s attorneys obtained their proceeds from the bank, lodgement can be arranged at the Deeds Office. If there are various attorneys attending to different aspects of the transaction their documents will to be linked and lodged simultaneously with the transferring attorney’s documents i.e. the consent to cancel the seller’s existing mortgage bond over the property, and the buyer’s mortgage bond.

The process of registration in the Deeds Office normally takes between 8-10 working days from the date of lodgement. Once registration is complete a new Title Deed will be issued confirming that the purchaser is the registered owner of the property. Upon registration, the transferring attorney will finalize the parties’ statements of account and pay the proceeds of the sale to the seller.