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Buying or selling a home? Know the process

The transfer process is synonymous with building a house. The foundation must be laid and certain parts are built simultaneously in order for the process to be completed as one cannot be done without the other. There are many parties involved in a transfer process and each one has an important role to play.

The following are the steps involved in the transfer of property:

CONTRACT OF SALE

The nominated transferring attorney, usually appointed by the Seller, acknowledges receipt of the instruction to all parties involved, being the Seller, Purchaser, and Estate Agent, if one was used.

The transferring attorney peruses the agreement to familiarise themselves with the terms and conditions. The attorney makes a point of mentioning any suspensive conditions that may be listed in the contract sale, for example, the date of when the Purchaser shall confirm whether he/she has obtained a bond, should the sale be subject to the Purchaser obtaining a bond.

ATTORNEY

Once the Purchaser’s bond has been approved by the financial institution and the attorney is informed of this, the attorney shall request all supporting documents from the Seller and the Purchaser, such as FICA documents and any other necessary documents to proceed with the transaction.

Furthermore, the attorney conducts a deeds office search to verify the property details that is being sold/purchased. The attorney shall, as soon as possible, contact the Seller’s financial institution, who has an existing mortgage bond over the property, to advise that the property is being sold.

COLLECTION OF DOCUMENTS AND FIGURES

This step follows from the above-mentioned, whereby the transferring attorney continues to gather all required figures, such as rates clearance figures and certificates issued by a municipality, and clearance figures from the Body Corporate or Homeowners’ Association, should the property be a sectional title or in an estate. Bond cancellation figures are requested from the bond holder, being the existing financial institution.

The title deed is requested from the bond holder. The Seller must be informed to start obtaining the electrical compliance certificate, beetle certificate, and plumbing certificate, which are all required to transfer the property.

COLLECTION OF PURCHASE PRICE AND COSTS

The attorney must ensure the collection of the deposit, transfer duty, and conveyancer’s costs from the Purchaser and clearance costs from the Seller. The collection of documents and figures as well as the collection of costs run concurrently.

DRAWING AND SIGNING OF TRANSFER DOCUMENTS

The attorney commences drafting the transfer documents, which is the new deed of transfer, power of attorney, and any other supporting documents that may be required to be lodged to pass transfer. The draft transfer documents are forwarded to the attorney that is registering the new bond. The Seller and Purchaser will sign the transfer documents at the attorney’s office.

PAYMENTS

Upon receipt of the monies from the Purchaser as stated above, the attorney will pay the transfer duty to SARS in order to obtain a transfer duty receipt.

The attorney shall pay the municipality and/or the Body Corporate or the Homeowners’ Association in order to obtain the clearance certificates. It is important to note that transfer will take place should these clearance certificates not be obtained from the appropriate body.

PREPARING FOR LODGEMENT

The conveyancer shall ensure that he/she signs the documents at the top right hand side of the first page of the deed of transfer, confirming that the conveyancer accepts responsibility for the correctness of the facts set out therein.

A final check of all information required, all costs collected, and purchase price is secured and all transfer documents are prepared and correct. If another transaction is involved, such as the new bond, the attorney is informed that you are ready to lodge at the Deeds Office in order for both transactions to be registered simultaneously.

LODGEMENT AND REGISTRATION

If all requirements are met, the necessary transfer documents are lodged in the Deeds Office for the examiners to review the documents to ensure all legal requirements have been met to transfer the property. If the examiners are satisfied and the conveyancer is certain that transfer is ready to take place, he/she may register the transfer, meaning the conveyancer will sign the deed of transfer in the presence of the Registrar of Deeds and the Registrar will also sign the deed. This process from lodgement to registration takes seven to fourteen days.

WINDING UP

Once the transfer is registered, the conveyancer will notify the Seller, the Purchaser, the Agent, and any other relevant parties in writing that the transfer has taken place.

The transferring attorney must now call up guarantees from the financial institutions or from the bond attorney to have the balance of the purchase price paid into the trust account, so that the attorney may proceed to effect payment to the relevant parties, such as the Seller and the Agent.

Reference List:

  • THE ABC OF CONVEYANCING by LIZELLE KILBOURN

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

 

Carla Cloete

 

Director | Attorney, Conveyancer & Notary | LLB  

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.