Transfer of an erf based on a Deed of Sale
As soon as the estate agent is in possession of a legitimate Deed of Sale, signed by both the seller and the purchaser, he hands it over to a conveyancer, instructed by either the seller or the estate agent himself, for registration of the transfer of ownership. The conveyancer now prepares all the necessary deeds and documents and attends to signing thereof by both parties.
These documents includes:
- FICA documents
- Sworn affidavits by the seller and purchaser confirming their physical and postal addresses, income tax numbers, marriage statuses, identity document numbers and their financial solvency
- Transfer Duty and VAT
- Power of Attorney (hereafter referred to as “PA”) in favour of the conveyancer
When signing these documents, the conveyancer provides the purchaser with his statement of account for the registration of the transfer as well as payment of Transfer Duty to SARS and costs of the Deeds Office. Upon payment of his account, the conveyancer applies for a Transfer Duty Receipt (hereafter referred to as “TDR”) and deposit the required amount to SARS for the issuing of the TDR. Furthermore, the conveyancer applies for a Regional Clearance Certificate (hereafter referred to as “RCC”) at the relevant municipality and/or body corporate. The municipality issues initial outstanding figures, usually calculated for a period of 60 days in advance. This outstanding amount is payable by the seller. After payment of all outstanding amounts for levies, taxes and municipal services, the municipality will issue the RCC. It is important to note that the RCC is only valid for a period of 60 days from the date of issue, consequently the Deeds Office will reject a deed if the RCC has lapsed. Application may be made for extended figures when the RCC is still valid but might lapse before registration can take place.
When the conveyancer is in possession of both the TDR and the RCC, he prepares and signs the new draft deed to be lodged at the Deeds Office together with all the other transfer documents (PA, TDR & RCC).
In the event that there are more than one registration taking place with reference to the same transaction, for instance if there is also a bond being cancelled and/or registered (which may very well be done by different conveyancers or law firms), all these registrations are to be lodged simultaneously and in one set.
Take note that the transfer of property may not be registered when the property is encumbered by a mortgage bond. Consequently, all bonds have to be cancelled and, if necessary, new bonds are to be registered simultaneously with the transfer registration.
Transfer of a Sectional Title (townhouse) based on a Deed of Sale
When transferring a townhouse (also known as sectional title unit), the procedure stays the same as with transferring an erf, but there are further requirements applicable.
Additional to the RCC, the body corporate also has to issue a levies certificate, indicating that there are no outstanding monies due with reference to the property. Furthermore, it is required that the conveyancer depose to an affidavit stating that all levies are paid up to date of registration, indicating whether or not a real right to expand the scheme is registered in favour of the developer and whether provision was made for separate clearance certificates for each unit in the scheme.
There are also different forms and requirements for the clauses in the deed of transfer and general registration process, for instance, when registering a mortgage bond over a sectional title unit, there need not be a PA lodged together with the bond.
Transfer of immovable property from a deceased estate
Once again the basic conveyancing principles of transferring immovable property are applicable, together with further additional requirements.
Property may not be transferred from an estate to an heir or beneficiary if the Master has not endorsed the PA authorising the conveyancer to transfer the property on behalf of the Executor of the estate. This endorsed, original, PA must be lodged together with the transfer documents in the Deeds Office.
In the event that the estate sells the property, it is not required that the Master endorses the PA, but the conveyancer is required to lodge a certificate confirming that the transfer is taking place in terms of the Liquidation and Distribution Account (hereafter referred to as “L&D Account”), that the L&D Account has been accepted and that no objections were made thereto.
By implication it is required that a deceased estate be reported to the Master of the High Court and a Letter of Executorship or Letter of Authority (in the case of estates with a value lower than R250 000.00) needs to be issued prior to the Master endorsing the PA and thereby condoning the transfer of immovable property.
The Master does not simply accepts the PA and endorses it as an administrative act. He examines the estate and division thereof, whether testate or intestate. The Master will not endorse the PA if the intended transfer is not done in terms of the Will of the deceased, an accepted and legitimate redistribution agreement or in terms of the Intestate Succession Act, amongst others.
It might seem that property may be transferred directly after issuing of the Letter of Executorship or Letter of Authority, but this is not the case. In the majority of estate transfers it is required that the L&D Account, as approved and accepted by the Master, should also be lodged in the Deeds Office. The L&D Account is the final step in the administration of an estate.