Conveyancing is the legal process by which the lawful ownership of an immovable property is obtained. Basically, a new deed of transfer is drawn up by a conveyancer and lodged at the deeds office. In this article, we will look at everything you need to know about conveyancing.
Conveyancer meaning
A conveyancer is an attorney who has specialised (and qualified) in the preparation of deeds documents which by law are registrable in the Deeds Registry. If you are a lawyer and would like to qualify as a conveyancer, have a look at our conveyancing course for attorneys.
A conveyancer is basically the transfer attorney of a property, a bond attorney attending to a new bond registration, or a cancellation attorney attending to the cancellation of existing bond(s). The conveyancer gets all the legal paperwork in order to be able to file with the Deeds Office. When you buy a property, the seller will appoint a conveyancer who will file with the Deeds Office to get the property transferred to your name. The buyer is usually responsible for the conveyancer’s fees.
You need to first become an attorney before you can attend the Gawie le Roux conveyancing for attorneys course.
Types of conveyancing attorneys (in sale of property)
There are three different types of conveyancing attorneys involved in the process of selling property. All of these have different roles and responsibilities. Let’s have a look at what they do.
Transferring attorneys
They transfer the property from the seller to the buyer. Transferring attorneys are appointed by the seller and they represent the seller. However, they are usually compensated by the buyer. The transferring attorney needs to be a qualified conveyancer.
Additionally, the transferring attorney oversees the whole transfer process. They also collect the full purchase price on behalf of the seller, pay the costs involved on behalf of the parties, and reconcile the accounts.
Registering (or bond) attorneys
They help the purchaser to register a bond over the property. This is done at the bank that the purchaser chooses to help with the purchase of the property. Registering attorneys represent the bank and the purchaser. However, their fees are paid by the purchaser.
Registering attorneys play a critical role in the purchase of immovable property since most people cannot afford to buy a home without a home loan.
Cancellation attorneys
These conveyancers cancel the seller’s bond in favour of the bank that has financed the property. Cancellation attorneys represent the bank that has financed the home loan and the seller. They are appointed by the bank that is granting the existing mortgage to the seller and they are usually compensated by the seller.
The process of conveyancing
The conveyancing process is long and may seem daunting to new home buyers. Therefore, we have simplified the process for you to understand it more clearly. However, if you still do not understand, we propose that you contact a transferring attorney.
1. Making an offer
Various interested home buyers will look at the house and property. Whereafter some will make a purchase offer. This purchase offer is legally binding as soon as the seller accepts the offer. The buyer and seller will then sign the agreement of sale.
In this step, the bank will also need to approve the buyer’s bond. This can be any bank in South Africa that does mortgage loans. Usually, if the buyer cannot find a suitable home loan, the purchase offer conditions are not met and becomes void. The seller will then need to find a new buyer.
2. Conveyancing attorney instruction
The transferring attorney, bond attorney, and cancellation attorney all receive instructions to carry out their tasks. The information needed are the guarantee figures, the title deeds, and cancellation figures, the levy figures, and the rates clearance figures and valuation certificates as well as all FICA from the purchaser(s) and seller(s).
3. Sale conditions
The process only continues when the suspensive conditions are met. For example, the qualification of the buyer for the home loan. Or it can even be based on the condition of the sale of another property.
4. Signatures and payment
The bond and transfer documents are drafted by all the relevant conveyancers once all the purchase agreement conditions have been met. The buyer and seller will then sign all the transfer documents. Additionally, the buyer will have to sign the bond documents.
The transfer attorney will apply for a transfer duty receipt from SARS, a levy certificate and the rates clearance certificate. Additionally, they will also make the necessary payments. The seller will pay the rates payable by him/her. The buyer will pay the relevant transfer fees.
5. Compliance Certificates
The seller is responsible for providing all the respective compliance certificates. This includes electrical, electric fencing, plumbing and gas.
6. Guarantees
In this step, the seller’s existing bond on the property is prepared to be canceled. The bond attorneys provide guarantees from the buyer’s bank for the balance of the property purchase price. This is the purchase price minus any deposit. However, if there is no deposit payable, the full purchase price needs to be guaranteed by the buyer’s bank. The conveyancing attorneys also ensure that FICA compliance has been met.
7. Lodgement
The transferring attorney prepares all the documents for filing at the Deeds Office. Thereafter, the Deeds Office examines the documents. This can take approximately 10-12 business days. The Deeds Office lets the attorney know that the property is up for registration. Hereafter the attorney has finalised the transaction and attends to registration in the Deeds Office.
8. Registration and proceeds
The conveyancing attorneys need to appear at the Deeds Office for Deed registration. Ownership then passes from one party to another. At the same time, the buyer’s new bond is registered and the seller’s bond is canceled. Then all the parties, including the seller, seller’s bank, and the Estate Agent are paid.
Finally, the buyer (or new owner) can take possession of the property. Or occupy it.
9. After everything
About 3 weeks to 3 months pass before the original Bond Documents and Title Deed are delivered to the attorneys. They usually also send a copy to the buyer. The original title deed and mortgage bond are delivered to the bank. However, if the buyer fully paid for the property, the title deed is delivered to them.
Qualifications needed to be a conveyancer in South Africa
To become a conveyancer in South Africa, you need to at least complete an NQF level 4 diploma in Conveyancing law and practice. Additionally, you will need to complete an NQF level 6 conveyancing law and practice course or diploma. Both of these courses can be completed in around 18 months.
Conveyancing secretary
Conveyancing secretaries offer assistance to conveyancers. They may help with preparing and drafting of documents and keeping files in good order and up to date. They help to save time for property lawyers so that they can get more done. A lot like personal assistants, however, conveyancing secretaries are a lot more specialised than secretaries. Therefore it is of utmost importance that prospective property secretaries do a conveyancing secretary course that will really equip them with the right skills.
People also ask
What is the difference between a conveyancer and a lawyer?
The main difference is that a conveyancer specialises in the profession of conveyancing. While a lawyer may be unspecialised. However, it is lawyers that study further to become conveyancers.
Additionally, an attorney does not have to become a conveyancer. There are lots of other subjects that an attorney can choose to specialise in.