Once an offer to purchase has been signed by the purchaser and the seller of immovable property, an attorney must be appointed to attend to the registration of the property into the purchaser's name. Ownership in the property is passed from the seller to the purchaser by registering a deed of transfer at one of the 11 deeds offices across the Republic of South Africa, being an entity of the Department of Rural Development and Land Reform.
Upon registration, the deed of transfer becomes the owner's title deed and will serve as proof that he/she is the owner of the property. Only conveyancers are qualified to attend to the process of transferring and registering properties in the deeds office. A conveyancer is a qualified attorney who has been admitted as a conveyancer of the High Court of South Africa after having successfully completed the prescribed conveyancing examinations.
The conveyancing attorney, as the driving force behind the transaction, will oversee each step of the process. Most importantly, the conveyancing attorney will see to all financial aspects relating to the transaction and will ensure that the proceeds of the sale of the property is paid to the seller as soon as possible following registration at the deeds office.
Conveyancing Attorney: Who Appoints One?
In practice, the seller normally appoints the conveyancing attorney (commonly also referred to as the transfer attorney) to attend to the registration of the property into the purchaser's name but the conveyancing attorney is expected to act in the best interest of both the seller and the purchaser by giving effect to all the terms and conditions contained in the offer to purchase.
The courts have, on various occasions, emphasised that the appointment of a conveyancing attorney is no trifling matter. The conveyancing attorney plays a pivotal role in the transfer of immovable property from one person to another. Therefore, the appointment of a conveyancing attorney is as much a term of the offer to purchase, requiring negotiation and agreement between the parties, as are other terms such as, for example, the payment of estate agent's commission and the payment of conveyancing fees.
If the purchaser requires financing through a bank, then the purchaser will usually rely on the conveyancing attorney (commonly also referred to as the bond registration attorney) appointed by the bank. The bond registration attorney will attend to the registration of the mortgage bond in favour of the bank.
In the event that a dispute arises between the seller and the purchaser, the conveyancing attorney will likely represent the party who has appointed it in terms of the offer to purchase (usually the seller).
Who Pays the Conveyancing Attorney's Fees?
Unless the parties expressly agree otherwise, the purchaser is responsible for the payment of the conveyancing attorney's fees and disbursements. If the purchaser is registering a bond over the property, then the purchaser will also pay the bond registration fees and disbursements of the bank's bond registration attorney. Conveyancing attorney fees are based on recommended tariffs which are published annually by the Legal Practice Council.
What To Consider When Choosing a Conveyancing Attorney?
For many South Africans, selling or buying immovable property could be considered one of the most important transactions they will take part in during their lifetime. Due to the intricate nature of the conveyancing process and having regard to the risks involved, it is essential that one makes use of a reputable conveyancing attorney who is well established in the practice of conveyancing law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.