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Fax:+27 11 431 3829
Email:queries@dslaw.co.za
DU PLOOY INC • ATTORNEYS • NOTARIES • CONVEYANCERS
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Questions & Answers

  1. What is Conveyancing?
    Conveyancing is the legal process whereby property is transferred from one person to another in South Africa.
  2. What is Conveyancer?
    A Conveyancer is an Attorney with an additional qualification in Property Law and Conveyancing.
  3. What is Deeds Office?
    The Deeds Office is where the State (Government) keeps a record ("Deeds Registry") of all Title Deeds issued (registered) by it. There are a few Deeds Offices in South Africa, normally one in each province.
  4. Next step Accepted Offer?
    I have accepted an offer to sell my house. What is the next step? Have you or your Estate Agent appointed a Conveyancer? (Remember that you can approach a Conveyancer for advice before you accept any offers.)
  5. Next step Bought a House?
    I have bought a house. What is the next step? Has the Seller or Estate Agent appointed a Conveyancer?
  6. What is Transfer Duty?
    Transfer Duty is a tax that is levied by SARS on the value of any property that is purchased.
  7. Who must pay for Transfer Duty?
    Transfer Duty is payable by the Purchaser.
  8. What is Title Deed?
    A Title Deed or Deed of Transfer is an official document that serves as proof of ownership of the property and contains various information about the property such as the price for which the property was purchased and for what purposes the property may or may not be used.
  9. What is Lodged or Lodgement?
    What does it mean when the matter has been lodged? This is when all the documents relating to the transaction has been handed in at the Deeds Office. This includes the documents that relate to simultaneous transactions (for example, the cancellation of the Sellers' existing bond(s) and the Purchaser's new bond, etc). The Examiners at the Deeds Office will now examine all the documents to ensure that everything is in order for the matter to proceed to the next level which is called "prep".
  10. What is Prep?
    What does it mean when the matter is up on prep? This is the pre-final stage of registering the matter in the Deeds Office. It means that the matter was lodged in the Deeds Office and the Examiners at the Deeds Office have examined all the documents that were lodged and they are satisfied that the matter may proceed to be registered. When this happens, the Deeds Office notifies all the conveyancing attorneys involved in the transaction that the matter has come up on preparation for registration or the matter is up "on prep". The Deeds Office normally gives the conveyancing attorneys a day or two for an instruction to proceed and officially register the matter in the Deeds Registry of the Deeds Office.
  11. May I buy or sell property without a written agreement? ?
    No. Verbal agreements for the sale or purchase of properties are not valid or enforceable in South Africa.
  12. What is Sale Agreement?
    The Sale Agreement has different names: Deed of Sale, Offer to Purchase, Memorandum of Agreement, Agreement of Sale of Property, Agreement of Purchase of Property, Agreement for Sale and Purchase of Property, etc.
  13. Where Mortgage Bond/Home Loan?
    Where can I apply for a home loan/mortgage bond? You can apply for a home loan/mortgage bond at: your bank, any bank or you may ask a Bond Originator to assist you.
  14. What is Bond Originator?
    A Bond Originator is someone who applies for a home loan/mortgage bond on your behalf at various different financial institutions and banks in order to help you find the best deal for your individual needs.
  15. What is Proceeds?
    The proceeds of a sale is the net profit (i.e. after all costs have been paid for) of a transaction or transfer of a property. Sometimes a Purchaser sells his existing house and then use the proceeds of that sale toward the purchase of his new house. This is referred to as a "subject to" offer.
  16. What is A "subject to" offer?
    The proceeds of a sale is the net profit (i.e. after all costs have been paid for) of a transaction or property transfer. Sometimes a Purchaser sells his existing house and then use the proceeds of that sale toward the purchase of his new house. This is commonly referred to as a "subject to" offer.
  17. Where House Hunting?
    I want to buy a house. Where can I find a house? You may make use of the following channels: Estate Agent, Internet, Privately (family member, relative, friend, door to door, etc.)
  18. What must I look out for? ?
    What must I look out for in a Sale Agreement / Offer to Purchase when I want to purchase a property? Actual price of the house, actual size of the house, date of possession, completion certificate, know what the builder's warranties cover, the deposit, make sure the agreement of sale matches the property description and the description of the seller, particularlybe sure of suspensive conditions, financial details and relevant dates.
  19. What are Important Terms and Conditions?
    Important terms and conditions of the Sale Agreement (sometimes referred to as the "contractual" terms or the "salient" terms) are rules which one must agree to abide by in order to use a service. Terms of service can also be merely a disclaimer,
  20. What are Special Conditions?
    Provisions of a contract that are peculiar to the project under consideration and do not fall under the general conditions or supplementary conditions.
  21. What is Caveat?
    A warning or proviso of specific stipulations, conditions, or limitations.
  22. What is Interdict?
    A legal restraint upon a person or his property
  23. What is Usufructs, rights of habitatio and usus?
    Usufruct, Usus and Habitatio are all ways in which a personal right can be established for a beneficiary in terms of which he acquires certain rights over a thing without becoming the owner of the thing. Usufruct is a limited real right which entitles a person to have the use and enjoyment of another's property and to take its fruits without impairing the substance. The personal right of habitatio entitles the holder to live in a building without ever becoming the owner of the building. .The personal right of use (usus) is a lesser right than usufruct. It entitles a person to use another's property, but not to appropriate the fruits of the property.
  24. What is Letting Enterprise?
    Is a business working with property which they "let"or rent to consumers
  25. What is Going Concern?
    Going concern is an accounting idea that business should be valued on the basis that it will be continuing to trade and able to use its assets for their intended purpose.
  26. What are Latent Defect?
    A latent defect is more contentious. As the word implies, it is "hidden" and requires a trigger in order to activate it.
  27. What are Patent Defect?
    Seller must attend to all patent defects: a patent defect is visible and obvious to all, and the purchaser therefore buys the property with full knowledge of this defect.
  28. Where Deposit?
    Has the Deposit been paid? To whom was the Deposit paid: the Estate Agent or the Conveyancing Transferring Attorney? Confirmation of receipt of the deposit is required in writing and it must be invested in an interest bearing trust account.
  29. Where Balance of Purchase Price?
    Has the balance of the Purchase Price been secured? In other words, if it is a cash sale, the Purchaser's Bank must issue a Bank Guaranteed Cheque for the full amount of the balance of the Purchase Price, alternatively the funds must be paid into the Conveyancing Transferring Attorney's interest bearing trust account.
  30. What are Guarantees / Bank Guarantees?
    Should a home loan be granted to the Purchaser, the Conveyancing Bond Attorneys must issue guarantees. This is similar to a post-dated cheque or a written letter of undertaking by the Bank confirming that the Bank will pay the full balance of the purchase price to the Conveyancing Transferring Attorneys on the date when the matter is registered in the Deeds Office.
  31. Where Signature of Documents?
    The Purchaser will be required to sign documents with the Conveyancing Transfer Attorneys; and if the Purchaser is registering a bond over the property, the Purchaser will be required to sign documents with Conveyancing Bond Attorneys as well.
  32. Where Signature of Documents?
    The Seller will be required to sign documents with the Conveyancing Transfer Attorneys.
  33. Who must pay for Conveyancing Fees and Costs?
    The Purchaser must pay all the Conveyancing fees and costs to the Conveyancing Transfer Attorneys
  34. What are Simultaneous Transactions or "simuls" and "linking" of matters?
    Apart from the registration of the transfer of the property, there may be other transactions involved which must be registered at the same time as well. These are called simultaneous transactions (or "simuls"). For example, there might be an existing bond
  35. Who must pay for Rates & Taxes, Levies, Special Levies, etc, and Clearance Certificates?
    It remains the Seller's responsibility to keep on paying all costs and expenses relating to the property until the date of transfer. Upon registration of the transfer of the property in the Deeds Office, the Seller will be refunded from the date that the Purchaser took occupation of the property. It is also the Seller's responsibility to pay for all types of clearance certificates, for example Electrical Compliance, Electrical Fencing, Roof, Entomologist, etc, as and where necessary.
  36. Must I keep on paying my bond and insurance? ?
    It remains the Seller's responsibility to keep on paying the Seller's bond repayments and insurance premiums until the date of registration of transfer of the property into the name of the Purchaser.
  37. How can I sell my house? ?
    I want to sell my house. Where can I find a Purchaser? You may make use of the following channels: Estate Agent, Internet, Privately (family member, relative, friend, door to door, etc.)
  38. What is Voetstoots - Generally?
    The voetstoots clause means that the Purchaser accepts the property "as is", with all its faults. (See "Defects" above.) However, it does not protect the Seller if the Sellers was aware of a latent defect and did not inform the Purchaser about it.
  39. What is Voetstoots - and the new Consumer Protection Act?
    The new Consumer Protection Act is not really applicable to "once-off" transactions. However, should the Seller specialise in the field of selling properties, for example a developer, then the new Consumer Protection Act is applicable, and thus, the inclusion of a voetstoots clause in the Sale Agreement is unnecessary. Furthermore, if the Purchaser is a legal entity (for example a company or a trust) whose asset value or annual turnover at the time of the purchase of property is equal to or exceeds R2 million, then the new Consumer Protection Act will not apply.
  40. What is Occupational Interest / Occupational Rent?
    Occupational Interest (or more commonly referred to as Occupational Rent) is the monthly rental amount paid by the Purchaser to the Seller if the Purchaser takes moves into the property (or more commonly referred to as "taking occupation of the property") before the property is registered into the Purchaser's name (or more commonly referred to as the "Transfer Date").
  41. Who must pay for Occupational Interest / Occupational Rent?
    Occupational Interest (or more commonly referred to as Occupational Rent) is payable by the Purchaser to the Conveyancing Transfer Attorney, or the Estate Agent, or the Seller's Bond Account. This must be recorded in the Sale Agreement.
  42. What is Date of Occupation / Occupation Date?
    This date is the date that the Purchaser moves into the property or more commonly referred to as the date when the Purchaser "takes occupation of the property". It can be a specific date that was negotiated between the Seller and the Purchaser when they were signing the Sale Agreement. Or the Seller and Purchaser can agree that the Purchaser will only move into the property once the property has been registered into the Purchaser's name (or commonly referred to as the "Transfer Date"). This must be recorded in the Sale Agreement.
  43. How much is Occupational Interest / Occupational Rent?
    Occupational Interest (or more commonly referred to as Occupational Rent) is normally calculated at 1% (one percent) of the Purchase Price of the property. This amount is negotiable between the Seller and Purchaser when they are signing the Sale Agreement. This must be recorded in the Sale Agreement.
  44. What happens if Seller Dies?
    If the seller dies before closing then the buyer will have to deal with the estate of the seller and have to wait for the house to clear probate to clear the title properly as the estate would have to them sell the house. The estate could be bound to the contract unless the contract for some reason does not specify that the "heirs/assigns/successors" will be bound by the agreement, which most sales contracts specify. If the seller actually signed the deed before death the sale could go through, but it could be challenged by the estate and generally they will challenge on the basis the signature is not proper or the sale became void on death, but the fact in almost every case is that if the seller signed the deed the sale is valid.
  45. What happens if Title Deed is lost?
    The deeds office keeps a record of all property transactions. If a title deed is destroyed or lost, application can be made to the deeds office for a duplicate original of the deed, at a fee. The application is accompanied by an affidavit stating that the deed is actually lost or destroyed and that diligent search has been made for the deed. Once the Registrar is satisfied he will then issue a certified copy of the title deed which will, for all purposes, be treated as if it were the original.
  46. What happens if Bond Document is lost?
    The deeds office keeps a record of all property transactions. If a document is destroyed or lost, application can be made to the deeds office for a duplicate original of the document, at a fee. The application is accompanied by an affidavit stating that the document is actually lost or destroyed and that diligent search has been made for the document. Once the Registrar is satisfied he will then issue a certified copy of the document which will, for all purposes, be treated as if it were the original.
  47. What happens if Dispute?
    The conveyancer represents the seller, but has a duty of care to the purchaser because the purchaser is not represented. As soon as a conflict arises, the conveyancer needs to advise the purchaser to seek independent legal advice and then await the outcome of that conflict resolution process,.
  48. What is Transferor?
    One who conveys a title or property.
  49. What is Transferee?
    One to whom a conveyance of title or property is made or transferred.
  50. What is Mortgagor?
    A person who mortgages property or gives the property as security; the borrower in a mortgage transaction.
  51. What is Mortgagee?
    The person to whom property is mortgaged; the creditor in a mortgage transaction
  52. What is Mortgage?
    A temporary, conditional pledge of property to a creditor as security for performance of an obligation or repayment of a debt.
  53. What is Mortgage Bond?
    A legal document by which the owner (i.e., the buyer) transfers to the lender an interest in real estate to secure the repayment of a debt, evidenced by a mortgage note. When the debt is repaid, the mortgage is discharged, and a satisfaction of mortgage is recorded with the register or recorder of deeds in the county where the mortgage was recorded. Because most people cannot afford to buy real estate with cash, nearly every real estate transaction involves a mortgage.
  54. What is Sectional Title?
    Sectional Title, as a form of ownership (as per the Sectional Titles Act No.95 of 1986), emerged originally to permit parties to buy a piece or section of a larger property / building / development in a fashion where there ownership (or title) is protected (under Sectional Title law) and where there are clear rules and guidelines on how the overall property is managed, maintained and run.
  55. What is Sectional Title - Body Corporate?
    A body corporate in sectional title is made up of unit owners in the townhouse complex or scheme. All registered unit owners in the complex are members. The body corporate members will elect Trustees to carry out daily running of the scheme.
  56. What is Sectional Title - Common Property?
    The common property is made up of those parts of portions of a sectional title complex or scheme which aren't part and parcel of a particular "section". Swimming pools, driveways, passageways and entranceways would be good examples of these.
  57. What is Sectional Title - Undivided Share in Common Property?
    An ownership right to use and possession of a property that is shared among co-owners, with no one co-owner having exclusive rights to any portion of the property.
  58. What is Sectional Title - Exclusive Use Areas?
    Part or parts of the common property for the exclusive use by the owner or owners of one or more sections. It is clear from the definition that exclusive use areas form part of the common property and are accordingly not owned by any one person or persons.
  59. When Guarantees / Bank Guarantees?
    When are the Bank Guarantees due? Normally within 20 days of signature of the Sale Agreement, however, this date must be negotiated between the Seller and Purchaser and recorded in the Sale Agreement.
  60. When Balance of Purchase Price?
    When must the Purchaser pay the Balance of the Purchase Price? Normally within 20 days of signature of the Sale Agreement, however, this date must be negotiated between the Seller and the Purchaser and recorded in the Sale Agreement.
  61. How much is Estate Agents Commission?
    Estate Agents Commission is negotiable. There is not a fixed amount or fixed percentage. Estate Agents Commission is normally between 5 and 7,5% of the Purchase Price plus VAT.
  62. Who must pay for Estate Agents Commission?
    Estate Agents Commission is paid by the Seller.
  63. When Estate Agents Commission?
    Estate Agents Commission is normally paid on the date or the day after registration of transfer of the property into the Purchaser's name.
  64. What is FICA?
    The Financial Intelligence Centre Act (38 of 2001) (the FIC Act) came into effect on the 1st of July 2003. The FIC Act was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. This requires all banks to verify client information, including a client's identity and residential address.
  65. What is SARS?
    The South African Revenue Service (SARS) is the revenue service (tax-collecting agency) of the South African government. It was established by legislation to collect revenue and ensure compliance with tax law. Its vision is to be an innovative revenue and customs agency that enhances economic growth and social development, and supports South Africa's integration into the global economy in a way that benefits all citizens.
  66. What is Fulfilment Date?
    The date on which the process from point of sales inquiry to delivery of a product to the customer is completed.
  67. What is Date of Acceptance of Offer?
    The date on which a formal offer in writing was accepted.
  68. What is Date of Expiration of Offer?
    The date on which a formal offer in writing will expire.
  69. What is Suspensive Conditions?
    To simplify, if a suspensive condition is contained in a sale agreement, the agreement does not come into operation unless the suspensive condition is fulfilled. This does not mean that the parties do not have to comply with the agreement until the date that the suspensive condition is fulfilled.
  70. What is Transfer Date?
    The date on which the property will be transferred from the Seller to the Purchaser.
  71. What is VAT?
    Value Added Tax is a tax on the estimated market value added to a product or material at each stage of its manufacture or distribution, ultimately passed on to the consumer.
  72. What is Certificate of Registered Title?
    A certificate of title is an official certificate indicating the name of the individual in whom ownership of a property is vested.
  73. What is Deed of Partition Transfer?
    The term that is used to describe a deed or document that will effectively divide up a real estate property.
  74. Who receives Interest Earned on Deposit?
    Who is entitled to the interest earned on the Deposit? The Purchaser. This is normally paid on the date of Transfer or the day thereafter.
  75. What is Donation Transfers?
    A voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.
  76. What is Rectification Transfers?
    Transfers in order to rectify registration errors, such as a property being inadvertently omitted from a deed of transfer.
  77. What is Exchange Transfers?
    Transfers following an agreement between owners to swop properties.
  78. What is Deceased Transfers?
    Properties sold during the life time of the Deceased, or sold by the Executor, or inherited in terms of the will of the Deceased.
  79. What is Estate Transfers?
    Conveying of assets from the donor to the beneficiary as a means of minimizing the legal tax obligation of the estate of the donor and avoiding probate.
  80. What is Divorce Transfers?
    Transfers of properties subsequent to divorce, in terms of a divorce settlement or Court Order.
  81. What is Sale in Execution Transfers?
    A sale in execution is a public auction held by a Sheriff of the Court. This means a court order has been obtained by the bank to attach and sell the property to recover the money that has not been repaid on a home loan.
  82. What is Consolidation of Property?
    The combining of the property of two or more entities into one.
  83. What is Notarial Tie?
    Notarial tie-agreements have the status of a personal servitude. A notarial tie-agreement is signed, in front of a Notary, by the relevant owner/s of the land being notarially tied and the person enforcing the tie-agreement. The enforcer could be the local authority, bank or any person or entity who would derive benefit from the properties being tied. The notarial tie-agreement is thereafter lodged and registered at the Deeds Office.