Selecting the right attorney can expedite property transfer

During a property sale transaction, selecting the right attorney for the job can make all the difference to how long the transfer process will take. This is according to Jose De Abreu, Broker/Owner of RE/MAX Property Associates and Founder and Managing Partner of De Abreu & Cohen Inc, conveyancing attorneys.

He explains that in the property transfer and registration process, there are usually three different conveyancers involved; the bond attorney, the bond cancellation attorney and the transferring attorney. “During the property transfer process, the bond attorney will act on behalf of the financial institution that is providing the finance to the buyer. Once a buyer has received bond approval from the bank or finance provider, the bond attorney will attend to registration the bond in favour of the financial institution (mortgagee) over the specific property in question, which occurs simultaneously with transfer,” says De Abreu.

He adds that if the seller has an existing bond over the property, which would be the current bondholder, the bank holding that bond will instruct a bond cancellation attorney to attend to the cancellation of the seller's bond. Once guarantees have been provided for the outstanding bond amount and the relevant documents are signed by the bank, the bond cancellation attorney will be ready to cancel the seller's bond.

“While it is generally the relevant bank that will appoint both the bond attorney and the bond cancellation attorney, when it comes to transfers, in most instances, the seller will be able to appoint the transferring attorney. This attorney will be responsible for handling the transfer of the property into the new owner’s name, and will co-ordinate the registration process with both the bond and cancellation attorneys, as all these processes must register simultaneously at the deeds office. The transferring attorney plays an important role in protecting the interests of the seller and insuring that there are no unnecessary delays. It sometimes happens that the transferring attorney is appointed to act in the capacity of one of the other roles as well,” advises De Abreu, although this is becoming less usual due to the banks preference of appointing different attorneys.

Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, says that it is vital to make sure that the chosen attorney has conveyancing experience.  “Conveyancing is a complex series of tasks that require extensive conveyancing knowledge, so choosing an attorney that is well versed in the property transfer process will ensure that minor problems do not become major issues.”

De Abreu agrees, saying that it is important that sellers appoint transferring attorney firms that are conveyancing practises, and are therefore experienced in the process of dealing with property transfers. The legal fees for attending to a transfer are based on a tariff calculated according to the value of the property, so the amounts charged from one law firm to the next will generally be very similar - so why not choose an attorney that specialises in property transfers and who has the required experience. The transferring attorney used will have a large influence on the length of time that the process may take, so it makes sense to make the best decision,” says De Abreu.  

During the transfer process the transferring attorneys are also required to comply with various regulatory and statutory provisions such as the Financial Intelligence Centre Act (FICA), the Transfer Duty Act and the Value Added Tax Act for the South African Revenue Service (SARS) and the Municipal Property Rates Act. 

De Abreu says that buyers should prepare for the property transfer by having the following documentation and information available:

•           A proof of address (not older than three months)

•           A certified copy of identity document

•           Income tax number

•           Details of marital and solvency status

•           Particulars concerning the identity of the attorney transferring the purchaser’s property if the purchaser is utilising the proceeds to pay for his purchase

•           Particulars of the bond granted

Some of these documents will be needed to meet the FICA requirements.

Sellers can assist in expediting the transfer process by having the following documents and information available:

•           Details of marital and solvency status

•           Particulars of bond holder (account number)

•           Valid Electrical Wiring Certificate

•           Valid Electrical Fencing Compliance Certificates (if relevant)

•           Valid Gas Compliance Certificates (if relevant)

According to De Abreu, on average the process takes around two to three months from the date of sale until the property is registered in the new owner’s name. However, certain external aspects can delay the process, such as waiting for a stipulated condition in the contract to be fulfilled or obtaining a rates clearance certificate.  South African law requires that before a property can be transferred, the transferring attorneys must obtain a rates clearance certificate from the local council. “Often a seller will be required to pay for a few months in advance in order to obtain their clearance certificate. Any overpayment by the seller as at the date of transfer will be refunded back to the seller,” says De Abreu.

During the selection process, De Abreu says that although a critical aspect is the attorney’s extensive experience in the area of law for which you require, it is also vital that the seller is comfortable with their choice and trusts their attorney. “Working with a reputable, experienced attorney will ensure that the process is as quick and hassle free as possible,” De Abreu concludes.  

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