The first trigger in the process is the need to transfer property, where in most examples is to purchase property. This purchase and sale can either be for commercial purposes or private property. The process is similar. This means that you have to make an arrangement for the Title Deed (this is a legal document that shows who is the rightful owner of the property) to be registered/transferred in your name. At the start of the process, you will require an Offer to Purchase and will also have to consult with a lawyer that specializes in property transfers (also known as a Conveyancer). In Johannesburg, there are almost 2,000 active conveyancing firms with Law Society to choose from.
People often want to see the property boundaries identified and they can get a copy of the plans (i.e. the diagram approved by the Surveyor General and surveyed by a registered Professional Land Surveyor) from the Chief Surveyor General. You would be required to input the ERF number (cadastral property description). The plan will provide information such as:
There is an online system that can be accessed at these links:
The Conveyancer will assess the type of property transfer that is required and will consider the applicable laws such as Financial Intelligence Centre Act (FICA). The Conveyancer will request for FICA documents such as:
So, you might want to have the relevant documents at hand.
Please note that purchasing property is not the only reason for transferring property. The Registrar of Deeds has a duty to register different types of transfers of ownership and cessions of rights registered in the deeds office arising from different causes as provided by the Deeds Registries Act. Other deeds registered in the deeds office include, to mention but a few, mortgage bonds, powers of attorney, servitudes, marriage contracts such as ante-nuptial and postnuptial, township registers etc.
All the above go through the same registration process depicted in the process flow diagram.
It is also useful to note that an electricity compliance certificate is required so the seller must ensure that all the electrical requirements are met. To speed up the process, it would be good if a registered electrician can run the tests and provide you with an electrical certificate.
A Land Audit was recently done and can be downloaded here.
Here are some examples of the Offer to Purchase Templates.
Transfer of ownership arises from different causes and different laws, therefore there is a wide variety of deeds of transfer registered in the deeds office namely but not limited to list depicted in the flow diagram below.
These are the most popular reasons why people transfer property, however, there could be other reasons.
There are about 2,000 conveyancing firms in Johannesburg to choose from; check with Law Society of South Africa. It would be advisable to obtain quotations from at least two conveyancers. Please note that whilst you may choose the conveyancer, there will be other attorneys also involved such as a Bond Cancellation Attorney and the Bond Registration attorney if there is an existing bond. The seller typically chooses the conveyancer but either can.
It is by law that one has to use a Conveyancer to transfer property, according to the Deeds Registries Act 47 of 1937.
Except in so far as may be otherwise provided in any other law, no deed of transfer, mortgage bond or certificate of title or any certificate of registration of whatever nature, mentioned in this Act, shall be attested, executed or registered by a registrar unless it has been prepared by a conveyancer.
[S. 15 substituted by s. 4 of Act 170/93, Proc.R.9/97 and s. 2 of Act 93/98]
Once you have appointed the Conveyancer, they will conduct a Deeds Search. The Purchaser or Seller can also do a Deeds Search at any Deeds Registry Office Information Centre or use an online system such as DeedsWEB. People often want to see the property boundaries identified and they can get a copy of the plans from the Chief Surveyor General.
The Title Deed will let you know who the registered owner of the property is. You would not want to make a purchase from someone who is not the rightful owner! The Title Deed will indicate the Bond endorsements on the property. It will also give you the Title Deed restrictions, the name of the current and former owner; and the previous purchase amount. You will also get to know what existing bond restrictions there are on the property.
Please note that the above requests at the Information Centre has a service of level of not greater than two hours for a search, seven working days for a Court Report, registration information within two working days.
The Conveyancer would also obtain the necessary guarantees with regard to the Bond. The Conveyancer will obtain the bond cancellation figures and will also follow up on the bond approval conditions of the Purchaser.
At this point in time, please note that there may be up to three (3) attorneys involved:
The Conveyancer will also request for cancellation figures for: electricity, rates and taxes, and levies from the Municipality and Body Corporate/Home Owners Association respectively.
Rates Clearance Application Form and Rates Clearance application process.
The Conveyancer (or attorney) will then prepare the transfer documentation once the suspensive conditions have been fulfilled and send the draft Deed and guarantee requirements to the Bond Registration Attorneys.
It will now be time for signing the actual transfer documents between the Purchaser and Seller. The Purchaser will also sign off on the Bond Documents (if applicable).
Payment for the Transfer Costs and Transfer Duties, outstanding rates and levies, VAT if applicable, bond fees to the Conveyancer Trust Account. Once this has been paid, the Conveyancer will make payments to the relevant departments (and Levies to Body Corporate/Home Owners Association) and will obtain the clearances (Rates Clearance Certificate, SARS Transfer Duty receipt, Levy Certificate).
The Seller has to pay for Rates and Taxes for four (4) months in advance and also pay for the Levies.
The Conveyancer will request for various certificates such as Electrical Compliance Certificate (Health and Environment Act), Electric Fence Certificate, Gas Certificate, and depending on the area may also request a Beetle Certificate, Plumbing Certificate, or Invasive Species Certificate. This is part of fulfilling the "offer to purchase".
Once the payment of the purchase price is secured, the conveyancer will arrange with the bond registration attorneys and bond cancellation attorneys for simultaneous lodgement of the deeds to the Deeds Office. The deeds and documents are placed in the lodgement cover and a unique bar code is placed on the cover for tracking purposes.
Deeds and documents will be made available from within seventeen (17) days from date of lodgement; provided that all the documents that have been submitted are in order.
Below is a list of the activities covered by the Deeds office when your documents are lodged by the conveyancer.
Transfer of ownership arises from different causes and different laws, therefore there is a wide variety of deeds of transfer registered in the deeds office namely.
|Other Reasons for Transferring/Registering Property||Transfer Arising from Juristic Acts or Operation of Law|
|Transfer arising from inheritance -This is a transfer of the property of a deceased person by a representative or executor of the deceased estate either in terms of a will or the laws of intestate succession (inheritance without a will)||Transfer arising from divorce- This refers to a transfer of property in terms of a divorce order whereby property is transferred either to both or one of the divorced partners.|
|Transfer arising from donation - This is a transfer of the property donated by one person (donor) to another (done) provided that the done has accepted the donation in writing.||Transfer arising from prescription- This refers to a transfer in terms of a court order whereby ownership is granted to one person due to their adverse occupation or possession of the property as if they owned it for a period of 30 years without interruption from its registered owner.|
|Transfer arising from sale - In this case transfer of ownership is based on a sale to the purchaser either by private treaty or public auction.||Transfer by virtue of marriage in community of property-This transfer takes place by virtue of the fact that when two people marry each other in community of property each of them obtains an undivided half share in the property of the other without an actual deed of transfer.|
|Transfer arising from Exchange -This is transfer of land ownership whereby two or more parties exchange their ownership over different pieces of land.||Transfer in an insolvent estate - This transfer occurs in terms of the laws of insolvency whereby the property of an insolvent person (a person whose liabilities exceed his assets) is transferred by law to the trustee in his insolvent estate without an actual deed of transfer.|
|Transfer arising from Rectification - This is a transfer of property back to the correct owner after being registered in error in another person’s name.||Transfer arising from restoration of property to a rehabilitated insolvent – This type of transfer occurs when a person who has been rehabilitated (cleared) from insolvency has his ownership in the land restored.|
|Transfer arising from dissolution of a partnership - This is a transfer of a property belonging to a dissolved partnership to some or all the former partners.||Transfer arising from legal succession - This type of transfer occurs when one legal entity or public entity is dissolved and its property is passed on to its successor e.g. the assets of the South African Railways and Harbours were passed on to PRASA and Transnet respectively.|
|Transfer by virtue of expropriation - This transfer occurs where the state legally dispossesses a person of his land ownership for public purposes subject to payment of compensation and such land is registered in a particular state organ.|
|Sheriff transfer at Auction – this happens usually when there is a fore-closure on the property by way of warrant of execution.|