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FAQ

Property Law

  • Once the sale agreement is signed, the Conveyancer receives it from the client / estate agent.
  • Once the suspensive conditions are met, i.e purchaser obtaining a bond, the transfer process can commence.
  • If there is an existing bond registered over the property (the sellers bond), the Conveyancer requests bond cancellation figures from the current bondholder and applies for the rates clearance figures from the local municipality.
  • The Conveyancer obtains FICA documents from the seller and purchaser.
  • The Conveyancer drafts the documents (affidavits, transfer duty declarations, power of attorney to pass transfer and the deed of transfer).
  • Parties sign the transfer documents and pay the costs.
  • The Conveyancer pays the amount due to the local municipality to obtain a rates clearance certificate.
  • The necessary documents are submitted to the Receiver of Revenue and payment of Transfer Duty is made to obtain a transfer duty receipt.
  • Documents are lodged in the Deeds Office (simultaneously with the bond cancellation and bond documents) for examination; the documents will then come up on preparation and be registered thereafter.

Under ideal circumstances a transfer takes between 2 to 3 months on average. There are a number of factors that can delay the transfer of a property, including:

  • Timeous payment of the purchase price/deposit and costs, including the amount for rates and transfer duty.
  • If the title deed and mortgage bond is available.
  • If the parties have the proper FICA documents available.
  • The period the local municipality takes to issue rates clearance figures and rates clearance certificate.
  • The period it takes the Deeds Office to examine and register the transfer documents.
    • There is a number of costs payable, including professional fees of the transfer, bond cancellation and bond registration attorneys.
    • The professional fees charged are in accordance with the guidelines prescribed by the Law Society of South Africa and are calculated on a sliding scale based on the purchase price of the property.
    • The Seller is normally liable to pay the amounts due for:
      • Electrical compliance certificate, including repairs required to issue the certificate;
      • Woodborer certificate, including fumigation costs if required;
      • Outstanding rates due to the local municipality up to date of transfer;
      • Amount due to the bank for the cancellation of the bond;
      • Professional fees of the bond cancellation attorneys;
      • Agent commission is applicable.

If there are sufficient proceeds from the sale of the property these costs are paid by the Conveyancer upon registration of the transfer.

  • The Purchaser is normally liable to pay the amounts due for:
    • Rates due to the local municipality from date of transfer to the financial year of the local municipality. Thus rates are paid in advance. The purchaser can arrange to pay rates monthly after the first financial year end;
    • Professional fees of the transfer and bond registration attorneys;
    • Deeds office registration fees;
    • Transfer Duty payable to SARS. Transfer duty is currently calculated as follows based on the purchase price or fair market value of the property:
      • 0% on the first R 600 000.00
      • 3% on R 600 000.01 up to R 1 000 000.00
      • R 12 000.00 plus 5% on the value from R 1 000 000.01 to R 1 500 000.00
      • R 37 000.00 plus 8% on R 1 500 000.01 and above
There are certain procedures to follow before the transfer can be registered. Sometimes it might take up to three mnths for a transfer to be completed.

Usually the purchaser of a property pays the majority of the costs including the Conveyancer’s fees and the Transfer Duty.

FICA (Financial Intelligence Centre Act) provides that attorneys are obligated to report any suspicious transactions entered into by their clients which exceeds the value of R25 000.

Attorneys are also required to confirm the identity of their clients.

An attorney may be qualified as conveyancer after the successful completion of a conveyancer’s examination, and be fully admitted as a conveyancer in the High Court of South Africa. Conveyancers are solely responsible to seeing to the registration of a transfer of immovable property.

Yes and No.

No, if the repairs are minor and you are replacing the existing building material with similar material. This includes replacing the felt to a flat roof, repainting, replacing a small area of previously existing and approved brickwork, and so forth.

Yes, if the repair involves the removal of a major part of a wall and rebuilding it. Approval is also required when new building material (such as roofing material, for example) is significantly heavier or lighter than the existing material.

Yes, the use of the property has changed.
Submit building plans for consideration at your respective Customer Care Area (C.C.A.)
When doing any major building work or alterations as stipulated in the National Building Regulations and Building Standards Act (Act 103 of 1977) as amended.

The following are some of projects that need municipal’s approval:

  • Extensions to existing building
  • Erection of new buildings
  • Conversion of existing loft into a room
  • Conversion of existing garage into a habitable room
  • Internal alterations
  • Carports
  • Cell mast
  • Advertising Structure
  • Construction of a conservatory etc.
Yes, this is a structural alteration and an appointment of a registered structural engineer is essential.
Yes – All drainage work in connection with a building requires an application, all consumer installation must comply with the South African standard specification 10252: water supply and drainage for buildings, SANS 10106: the installation, maintenance, repair and replacement of domestic solar water heating system and SANS 10254: the installation of fixed electric storage water heating systems or any similar substituting or amendment thereof if the consumers installation is of a type regulated by either standard.

No, if you are married in community of property you may not buy or sell immovable property without the consent of your spouse. When buying property it must be registered in both names and you will be co-owners of the property in undivided shares.

Should you need a copy of your deed for information purposes only you can go to the relevant Deeds Office and request a copy. Should you be unable to do so you could alternatively instruct an Attorney to obtain such a copy from the Deeds Office in person or by using the applicable online service.

Should you need a copy of the deed for transfer purposes a special application needs to be brought for the issue of same. In such a case you will need to seek the advice of a Conveyancer and instruct them to make the necessary application for you.

Estate Planning

Estate planning is important in ensuring that financial complications do not occur after your death.

Without proper estate administration, even the wealthiest of families have suffered severe financial blows, because the deceased’s estate was not properly identified and safeguarded by legal experts.

The administration of deceased estates and estate planning, requires specialised skills and insight.

Our estate planning services – which may involve the formation of trusts, or the drafting of new, tax-efficient, legally sound wills.

A last will and testament (which may be referred to as a will) is a specialised document which should be drawn up by an attorney.

Any person older than 16 years is allowed to make a will and choose their power of attorney, in order to determine how his or her estate should devolve upon death. If you die without a last will and testament, your estate will devolve in terms of the rules of intestate succession. Contrary to general belief, your assets do not go to the state.

  • The Master of the High Court is responsible to oversee the administration of deceased estates and trusts.
  • The Master of the High Court is also responsible for the registration of any type of trust.
  • All appointments of executors of a deceased estate and trustees of a trust must be approved by the Master of the High Court.
  • An executor (person responsible for the administration of a deceased estate) can be appointed in a Will of a person or, if there is no Will, be nominated by the close family of the deceased.
  • As a general rule, any person can be appointed as an executor with the following exceptions:
    • a minor child;
    • a mentally disabled person;
    • an unrehabilitated insolvent;
    • the Master of the High Court; or
    • any person who –
      • signed the Will as a witness;
      • signed on behalf of the testator; or
      • wrote the Will in his/her handwriting and on behalf of the testator.

If a person dies without a Will, his/her belongings will be distributed according to the Intestate Succession Act 81 of 1987 (“the Act”).

A person who does not have a Will does not have any control over how his/her belongings must be distributed after his/her death.

  • A trust is where the creator of the trust (“the founder”) transfers property to another person (“the trustee”) to be controlled on behalf of a third party (“the beneficiary”).
  • There are two types of trusts, namely a living trust and a testamentary trust.
  • A living trust comes into existence while the founder and the trustee is still alive. The terms and conditions of this type of trust will be set out in a document that is known as a trust deed and must be registered with the Master of the High Court.
  • A testamentary trust comes into existence after the death of the founder. This type of trust is created in a Will of the founder and will only be registered at the Master of the High Court after the death of the founder.
  • A trustee is the person who is responsible to control the property in the trust to the benefit of the beneficiaries. 
  • As a general rule, any person can be appointed as a trustee except for the following persons:
    • in the event of a testamentary trust, a person who signs the Will as a witness or who wrote the Will in his/her handwriting;
    • a minor child;
    • a mentally disabled person; or
    • the Master of the High Court.
  • A trustee will not be appointed if s/he is the only beneficiary in the trust.
  • It is a general practice to appoint 3 (three) trustees in order to provide for objective decision making by the trustees.

If you die intestate (without a will) then a specific system is used (as set out in the Intestate Succession Act) to establish who should benefit from your estate. Should you have no children but you leave behind a spouse to whom you are married out of community of property, that spouse will amount to your closest relative and will inherit your entire estate.

The duties of an Executor are onerous particularly where you leave behind an estate valued at more than R125 000.00. While it is possible to nominate a family member as your Executor it is advisable that you get advice from an Attorney before naming such a person in your will and also discuss what is expected from that person with them.

An important aspect of estate planning is to ensure that there are enough liquid assets in your estate that can be used to settle the expenses of the estate. Such liquid assets would be savings accounts, fixed deposits and so on. Should all of your wealth be tied up in immoveable property and assets that cannot quickly be converted to cash then a solution is to take out a life insurance policy, the proceeds of which can be used to pay the necessary expenses. In such a case the policy must be payable to your estate after your death and NOT to a relative or heir. When drafting a will it is advisable to discuss the liquidity requirements with an Attorney and to plan accordingly.

Notary Services

A Notary Public is an attorney admitted and authorised by the High Court of South Africa to witness signatures, draw and attest contracts and statements, and authenticate the validity of certain documents.

Yes, a Notary Public is an admitted attorney who has passed the practical examination in respect of the practice, functions and duties of a notary.

An admitted attorney who has passed the practical notarial examination may, on application to the High Court of South Africa, be admitted and enrolled as a Notary Public.

The requirements regarding how documents are to be signed may vary depending on the destination country. It may need to be signed only in front of a Notary Public or alternatively one or more witnesses may be required to be present in addition to the Notary Public. After being notarised by the Notary Public, the document may need to be apostilled, authenticated or legalised by the High Court of South Africa, Department of International Relations and Cooperation (DIRCO) or other government offices depending on the type of document and the destination country.

A Notary Public may not allow a witness to sign a notarial document without seeing the appearers sign, unless the appearers have acknowledged their signatures in the presence of the witness.

Certified copy:

– Copies of original documents can be certified by any Commissioner of Oaths in South Africa by endorsing the document with a Commissioner of Oaths stamp. This indicates that the document itself is a true copy of the original document.

Notarised copy:

– Copies of original documents can be authenticated by a Notary Public to prove that it is a true copy of the original by endorsing the document with a Notary Public stamp or seal.

The process of authentication of documents involves that the Notary Public verify the original document as well as the copy to ensure that the copy is a true copy of the original and that no amendments or adjustments were made thereto. Once the document has been notarised, the Notary Public issues a collation certificate.

It all depends on the authority requesting the notarised document.

A notarised copy of a document is a true copy of the original document.

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