Tag Archives: transfer

6 Steps to speed up your property transfer

B1Buying a house is a big decision, one in which the buyer will have invested numerous hours of research, planning and careful consideration. It makes sense then that a buyer would want their property transfer to be finalised as quickly as possible. But while property transfers are of nature a time-consuming process, there are steps buyers can take to make sure the process runs as smoothly as possible.

Step 1 – Determine what you can afford

Before you start typing your first Google search as you begin browsing the For Sale signs on the net, you should have a clear idea of what they can afford. Determining what you can afford will take careful budgeting and planning, an area where the assistance of a financial consultant will not go amiss.

Step 2 – Save for the deposit 

Once you have a clear sense of what your budget will allow, you can start saving up for the deposit. With the necessary guidance, you will be able to estimate how big a deposit you will be able to save ahead of the time, something that will lower the mortgage amount you need to apply for. This step can be taken far in advance, however, and will benefit you greatly once you do decide to invest in your own property.

Step 3 – Assess your credit and get pre-approval

Another step that should be taken beforehand, is to analyse your credit record and get pre-approval for a home loan. This will allow you to plan more efficiently by knowing how great a deposit you will have to save up by knowing how great a home loan you can qualify for. Through pre-approval, you remove any unwanted surprises that may have awaited you otherwise.

Step 4 – Keep the necessary documentation ready

This may feel like skipping ahead, but once you’ve found the perfect home and want to apply for a home loan, you will need to submit a number of documents, including documents you can prepare beforehand, such as copies of your ID and marriage certificate/antenuptial contract (if married). Having these documents ready ahead of time saves you valuable time when you’ve found your dream home.

Step 5 – Find a real estate agent

Real estate agents can offer you insight into an industry and market that requires all the know-how you can muster. By obtaining the assistance of a trusted real estate agent, buyers are able to minimise their costs and efforts in the property search, while also improving their chances of navigating the legislative processes that come with real estate purchases.

Step 6 – Find your ideal home

By ensuring that steps 1 to 5 are all taken care of, everything else is smooth sailing, where you can sit back and enjoy the ride without having to worry about the hiccups that could have come up along the way.

Limit the time your property transfer will take, step by step.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Why is the transfer of my property taking so long?

A1After signing a deed of sale, the purchasers often want to move into the property with great excitement and as soon as possible.

When they are informed of the process involved prior to the property being transferred this may place a damper on their excitement. Coupled with this there may even be delays in the transaction.

In order to avoid unnecessary frustration it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable.  Besides possible delays there are a number of processes that need to be followed before a house can be registered in a purchaser’s name.

At the outset, it must be determined if the deed of sale is valid and binding between the parties.  If not, a valid and binding contract will first have to be concluded between the parties.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer.  This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction.  Other attorneys involved are normally a bond attorney and/or bond cancellation attorney.

A major role of the transferring attorney is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running.  The notice period is normally up to 90 days.  If the bond is cancelled before then, there could be penalties payable.  The transfer may therefore be delayed as a result of the notice period.

If the purchaser will be registering a new mortgage bond to finance the transaction, a bond attorney will be appointed.  Since the transferring attorney will not normally be aware of whom the instructed bond attorney is, the bank will usually inform the bond attorney of who is attending to the transfer.  The bond attorney will then first make contact with the transferring attorney.

Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time.  Examples of these are rates clearance certificate, transfer duty receipt, homeowners association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate.

The transfer duty receipt is obtained from the Receiver of Revenue and should be lodged with all property transactions, even if no transfer duty is payable to the Receiver of Revenue.  During 2013 it took approximately seven working days from the submission of the request, until the transfer duty receipt was issued.

The rates clearance certificate is obtained from the local municipality in the area where the property in question is located.  The transferring attorney will first request the municipality to inform him of the amount they require in order to issue the certificate.  After receipt thereof the amount can be paid and the transferring attorney will then await the issued certificate.  The time this takes differs from municipality to municipality.  In the City of Cape Town, during 2013, figures were mostly issued on the same day they were requested and the receipt was issued within approximately five working days after payment.  This time frame is largely affected by whether or not the municipality works on an electronic system.

If the property is located in an area where a homeowners’ association is established, there will normally be a title deed condition in terms of which the consent of the homeowners’ association must be obtained prior to the transfer.  The time it takes for obtaining this certificate differs from one homeowners’ association to the other.

After an inspection by a plumber or electrician it may be found that certain work needs to be carried out before the certificates will be issued.  If the work that must be carried out is extensive this can cause major delays with the transaction.

If the property is being sold by an executor of a deceased estate, the consent of the Master of the High Court must first be obtained before the property can be transferred.  Major delays can be experienced if the Master of the High Court refuses to give such consent until certain requirements have been met.

Once the transferring attorney is satisfied that all relevant documents are in place he will arrange simultaneous lodgement at the Deeds Office by all attorneys involved in the transaction.  It is therefore vital that the bond attorney has by this time obtained the required approval to lodge from the mortgagee and that the bond cancellation attorney has the required consents in place to cancel the existing bond/s on the property.

Once all the documents are lodged at the Deeds Office, an internal process is followed, which has different time frames in the various Deeds Offices.  This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

The list of possible delays in a transaction varies from one transaction to the other and the possibilities are endless.  It is advisable to contact your conveyancer for an explanation should you feel that the process is taking too long.

References: Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West 

Compiled by Riëtte Nel

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Fixtures and fittings

A1Many transfer attorneys have heard the question from a seller: “May I remove the stove or the curtain rails or the shelves or the…?”

The most common dispute that arises between a seller and a purchaser is a dispute as to what is regarded as fixtures and  fittings. The simple answer is that this would be what the seller and purchaser agreed on in the offer to purchase, as the law leaves it to the seller and purchaser to make their own arrangements.

Usually the offer to purchase only states that the sale is “voetstoots and includes all improvements and all fixtures and fittings of a permanent nature”. It could also be that the offer to purchase does not refer to fixtures and fittings at all. If this is the case there are three factors that have to be  considered to determine whether a movable item is a fixture or a fitting.

1. The nature and the purpose of the item

The item should be of a permanent nature and intended to always serve the immovable property. In other words it must be attached to the land or the structure erected on the land. Examples of this are a carport, steel security gates welded to door frames, and an irrigation system. 

2. The manner and the degree of attachment

The question is whether the item loses its own identity and becomes an integral part of the immovable property or if the attachment is so secure that separation would involve substantial damage to either the immovable property or to the item itself. One must also take into account the method, time and costs involved in removing the item and whether the item could be used elsewhere. 

3. The intention of the owner

One should look at the intention of the owner at the time when the attachment was made.

It is therefore important to address this issue in the offer to purchase and draft a comprehensive list of what is included in the sale. This could save both parties a lot of time and frustration.

The following is a list of items that are usually considered to be permanent fixtures:

Built-in extractor fans; built-in kitchen cupboards; fitted bookshelves; fitted curtain rails; wall mirrors; stoves; existing garden, trees, shrubs, plants; pool filter, pool pump and pool cleaning equipment; fitted carpets; light fittings; towel racks; tap fittings; tennis court net; fireplace; awnings; post box;  alarm system; television aerial (but not satellite dishes) and door keys.

Some estate agents have amended their fixtures and fittings clause since the CPA came into operation, to read as follows: “The property is sold with all fixtures and fittings, including the following… which shall be in good working order on date of transfer.” The words “in good working order” are a very subjective assessment and opens the door to debate. The effect hereof is that the seller will be seen to have promised that all the fixtures and fittings will be in good working order, and to a large extent it will be eroding the protection of the voetstoots clause. Sellers should therefore take caution when signing the fixtures and fittings clause.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.