INTRODUCTION
Prior to the registration of immovable property, there are a number of procedures which must be followed. The conveyancing system utilises para-legal secretaries who work in conjunction with conveyancing Attorneys. The para-legal secretaries attend to the day to day running of a matter. Clients are however always welcome and in fact are encouraged to contact one of the conveyancing Attorneys to discuss any aspect of the conveyancing process relevant to a matter. The steps taken after receipt of the Deed of Sale and prior to registration of transfer vary from transaction to transaction, there are however certain steps which are uniform throughout.
SUSPENSIVE CONDITIONS
A suspensive condition is a condition that suspends the operation of the contract until such condition has been met. Although there are various possible suspensive conditions the most common suspensive condition in a deed of sale is that of the obtaining of loan finance, i.e. a mortgage bond. A deed of sale is not enforceable until the suspensive conditions are fulfilled. In the case of a suspensive condition relating to a mortgage bond, the Purchaser is obliged to take active steps toward the obtaining of that bond.
CANCELLATION OF EXISTING BOND
In order to transfer the immovable property to the Purchaser, the Seller’s existing bond (if any) must be cancelled. At this juncture it is important to realise that the cancellation of the existing bond, transfer of property and registration of the new bond, where applicable, all take place on the same day in the Deeds Office.
The most time consuming procedure is the obtaining of the title deeds and cancellation figures in respect of the Seller’s existing bond. Sellers are encouraged to provide their bond account details speedily in order to facilitate this. In terms of the National Credit Act Banks are entitled to 90 days interest in lieu of notice.
Sellers must be aware of the fact that the Attorneys appointed by the Bank to cancel the existing bond (the bond cancellation Attorneys) charge on average R1 300-00 for such cancellation. This fee is paid by the transferring Attorneys and is recovered from the Seller on registration of transfer.
In the event of there being no existing bond, the Seller is required to provide copies of the title deeds by facsimile. The original title deed must be lodged by the conveyancer in the Deeds Office and this document must thus be delivered to the conveyancers by the Seller when signing the transfer documents.
In the event of a title deed being lost, the conveyancers will obtain Deeds Office certified copies which may take some time. Sellers are thus requested to ensure that the original documents are available and advise the conveyancer as early as possible if this is not the case.
DOCUMENT DRAFTING
On receipt of the title deeds from the Sellers bank, the transfer documents are drafted and the Seller and Purchaser will be required to sign same.
The Bond Attorneys will draft the bond documents for signature once they receive the draft deed and guarantee requirements from the transferring Attorneys.
The Deeds office is extremely particular. One incorrect letter or number will result in the documents being rejected from the Deeds office with resultant delays. In order to avoid this the Seller and Purchaser are requested to provide identity documents/trust documentation/company documentation as soon as possible. (See FICA compliance in this regard).
GUARANTEES
If a mortgage bond is involved, the required information is sent to the Attorneys attending to the registration thereof (the bond Attorneys) to enable them to prepare their documents and to issue guarantees.
It must be borne in mind that the bond and transfer fees are charged for separately and the Purchaser must make provision for both these costs. These are generally payable once the documents are signed.
Unless the Bond Attorney has a Power of Attorney to sign guarantees on behalf of the Bank, the issuing of the guarantees for the payment of the purchase price from the bond can be a time consuming process. The Purchaser is requested to attend to the signature of the bond documents as early as possible to facilitate this process and avoid delays.
FINANCIAL INTELLIGENCE CENTRE ACT NO. 38 OF 2001 (“FICA”)
Before a transaction can be registered, the conveyancing Attorney must obtain FICA documents from the Seller and Purchaser. These documents provide proof of the client’s identity, as well as proof of the client’s residential address, tax registration and physical address. Please see the document headed Financial Intelligence Centre Act in this bundle for a comprehensive list of the documents required under the Act.
In the case of a bond registration, the various banks have different requirements in regard to FICA. On average however the Banks consider this a very important requirement and in some instances the bond Attorneys may not lodge in the Deeds Office until such time as the Bank has given a FICA proceed (thus the importance of the parties providing proper FICA information and documents timeously).
LODGMENT
Provided that the transfer, bond and bond cancellation Attorneys are ready to lodge, the documents are lodged in the Deeds Registry for examination.
Provided that there are no additional complications, transfer should be registered between ten and fifteen working days after the deeds have been lodged in the Deeds Registry.
PAYMENT OF GUARANTEES ON REGISTRATION
The bank registering the bond is required to make payment of the purchase price in terms of the guarantees on the date of registration. However due to the fact that conveyancers are reliant on outside factors, in practice this does not always occur, although conveyancers endeavor to ensure timeous payment. The funds reflect in the conveyancers trust account on the day after payment and payment to the Seller is made on this day.
Sellers and Purchasers are requested to provide banking details, prior to registration, in order to facilitate payment of funds due.
RETURN OF TITLE DEEDS
After registration the title deeds move through a post registration process in the Deeds Office. This process takes up to 4/6 months to complete, dependant upon the capacity of the Deeds Office.. The title deeds are returned to the conveyancing Attorneys after this process is complete and not before.
Where the sale is subject to a mortgage bond the title deeds to the property will be sent to the bank as part of the banks security for the loan. Where no bond is applicable the title deeds will be given to the new registered owner for safe keeping.
ESTATE AGENTS COMMISSION
Commission due to the Estate Agent is paid from our office out of the proceeds of the sale on the date of registration.
OCCUPATIONAL RENTAL
In the event of occupation before transfer, the Purchaser must make payment of occupational rent monthly in advance subject to pro rata adjustments for registration mid month. Occupational rental is to be paid either to the conveyancers or the Seller or as directed by the agreement of sale.
TELKOM TELEPHONE
The Purchaser may contact the Seller requesting the Seller to transfer its telephone into the Purchaser’s name. If the Seller does not transfer the telephone account into the name of the Purchaser or to the Seller’s new address, the Seller must remember to cancel the connection with Telkom. Purchasers and Sellers can contact Telkom on 10219 in order to arrange a new telephone line.
FIXTURES AND FITTINGS
Unless by agreement to the contrary in writing:
a) TV aerials are fixtures along with the mast. M-Net aerials and satellite dishes remain the property of the Seller;
b) a Seller is obliged to hand over all keys and remote controls which are required to make any of the locks on the premises work;
c) pot plants (indoor and outdoor) may be removed by the Seller but all plants planted in the garden must remain;
d) all pool equipment must remain including automatic pool cleaner. These are considered fixtures;
e) garden decorations like lamps, fountains and gnomes are considered fixtures; and
f) mirrors hanging or fixed in bathrooms are considered fixtures while hanging mirrors in the rest of the Property are considered ornaments and may be removed.
CARPET CLEANING
It is not prescribed that the Seller must clean the carpets before occupation, but it shows goodwill especially if they have been blemished during the vacating process.
RISK AND INSURANCE
In most standard agreements of sale of immovable property the risk in the property remains with the Seller until registration of transfer. Therefore, should anything go wrong with the property (other than damage caused by the Purchaser’s negligence), the Seller would be liable for repair costs. The Seller’s Property owner’s insurance (normally linked to your bond) keeps the property (structural) covered until registration. In the event that the Seller does not have a bond, he/she should ensure that the insurance remains valid until registration.
In the event of Purchasers purchasing property without a bond, they are advised to arrange sufficient insurance to be effective at the date of the passing of risk. (Not applicable in the case of sectional title)
ALTERATIONS
Neither party may make alterations to the property prior to registration without the prior written consent of the other party.
VOETSTOETS
The property is sold ‘Voetstoots’ or ‘as it now lies’. It is the Seller’s responsibility to maintain the property in its current condition until occupation or registration, whichever occurs first.
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