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The Transfer of Property

Oct 03, 2012
 
By Ridwaan Desai,
Attorney Conveyancer and Notary Public, practising as Desai and Associates

Selling your house: The term "conveyancing" (which is derived from the word "convey" meaning to move) describes the legal process whereby the rights in fixed property are registered at the deeds office to a specific individual. These rights, including ownership, mortgage, servitude, mineral rights and others, are transferred legally to a person upon successful registration with the deeds office. The registration process, therefore, places an official "seal" on an individual's rights in fixed property. "Fixed property" is any land, such as a house, farm or sectional title flat.

This column deals with the transfer of ownership of fixed property and the process involved in transferring various rights in property.

A conveyancing transaction entails a sequence of steps which begins with the deed of sale and continues through to the final registration of ownership and the issuing of a “Title Deedâ€Â? (Proof of ownership)

Who is a Conveyancer?
A conveyancer is admitted as such by the High Court after having completed a special qualifying examination. This admission by the High court entitles the conveyancer to transfer the ownership of property from one person to another. In South Africa, the usual practice is for the seller to appoint a conveyancer, however aspects of the sale agreement, can be varied as a result of negotiation between the parties.

The sale of fixed property is affected by entering into a written contract referred to as a Deed of sale or an Agreement of Sale. The requirements of a Deed of sale are as follows:

  •  It must be a written agreement.
  • It must be signed by both the purchaser and the seller, furthermore and
  • by their respective spouses where the parties are married in Community of Property.

A written agreement signed by a purchaser and accepted by a seller constitutes valid agreement. A verbal contract for the sale of fixed property is not valid and neither the seller nor the purchaser is bound by this verbal contract

The purchaser usually bears the transfer costs. These costs are fixed in terms of legislation based on a sliding scale, depending on the purchase price of the property. This information is readily available and allows the purchaser to make an informed decision before binding themselves in the Deed of Sale.

Finally, if the sale is subject to the granting of a bond, this must be specified in the deed of sale. It should also be specified as to what the amount of the bond must be, how much time the purchaser will have to obtain the bond, who will apply and so forth. It must also be specified that if the purchaser is unable to obtain the required bond in time, then the whole deal is to fall through. Arrangements as to which amounts (if any) the purchaser has to pay in these circumstances should also be specified.

The deed of sale grants the purchaser the right to claim transfer of the property. (For more details on the purchase of land, see future column dealing with "Buying and selling a house").

Next Column: Requirements before signing the Transfer Documents

For queries/questions please e-mail legal@desaiattorneys.co.za

Ridwaan Desai
Attorney, Conveyancer and Notary Public

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