Conveyancers in South Africa play a vital role in the process of transferring properties and registering mortgage bonds over properties as security for repayment of debts due and payable to bond holders or other creditors.
They are specialised attorneys equipped to attend to all the legal aspects of property related transactions. Their primary responsibility is to ensure that transactions are legally valid, and that all necessary documentation is correctly prepared and lodged in the Deeds Registry for registration.
To become a conveyancer in South Africa, an individual must first qualify and be admitted, as an attorney. This requires obtaining a legal degree from a recognised tertiary education institution, such as a university, completing a period of articles and being enrolled as an attorney of the High Court of South Africa. Once admitted, the attorney must pass the conveyancer’s admission exam and thereafter apply to the High Court to be enrolled as a conveyancer.
In essence all conveyancers are attorneys, but not all attorneys are conveyancers.
The responsibilities of a conveyancer include the following: –
- Review of Documents
A conveyancer reviews all legal documents relevant to the transaction, including the sale agreement, the property’s title deed, identity documents of the parties, and any mortgage bonds or other registered deeds that benefit or encumber the property.
- Conducting Searches
Conveyancers conduct various searches to confirm that there are no outstanding claims, mortgages or other legal impediments that would prevent the transaction from proceeding or being lawfully registered in the Deeds Registry.
- Calculating and Paying Transfer Duty
A conveyancer calculates the transfer duty payable and arranges for payment to the South African Revenue Service (SARS) before the transaction is registered in the Deeds Registry.
- Obtaining Clearance Certificates
A conveyancer obtains clearance certificates from local authorities, body corporates and/or homeowners’ associations, confirming that all rates, taxes, and levies are paid in full prior to transfer.
- Handling of Financial Transactions
Conveyancers manage all financial aspects of the transaction. This includes obtaining bond cancellation figures for all and any bonds registered over the property, arranging guarantees to secure the purchase price, ensuring the purchaser pays the conveyancing costs, and the collecting funds from the seller where necessary to cover bond cancellation costs, outstanding rates, levies or other debts relating to the property.
- Preparation and Lodgement of Documents in the Deeds Registry
A conveyancer drafts all necessary transfer, bond cancellation and bond registration documents, attends to the signature thereof and registers the documents in the Deeds Registry for registration.
By signing the preparation certificate on a deed, the conveyancer certifies that the facts in the document are correct.
- Ensuring Compliance by the Parties
A conveyancer ensures that all parties to the transaction comply with the terms of the sale agreement, and that the transaction complies with all legal requirements and relevant laws- including the Deeds Registries Act, and any other applicable legislation.
A conveyancer protects the interests of both the buyer and the seller by ensuring the process is lawful, efficient, and dispute free. Their expertise helps prevent legal issues and ensures that transfers and bond registrations are legally valid and enforceable in terms of South African law.
Final Thoughts
It is essential that the attorney attending to your property transaction is a qualified conveyancer, duly enrolled in that capacity by the High Court of South Africa.
If the transaction involves notarial matters, such as notarial deeds, ensure that the firm also has a qualified notary public. A notary public is a further specialisation, acquired after admission as an attorney. Only a notary can properly interpret, register, cede, or cancel a notarial deed affecting a property.
If a property transfer is found to be unlawful – regardless of how long ago the transfer took place or how many owners followed- the transaction may be set aside. This would also invalidate any registered encumbrances, such as mortgage bonds, leaving bondholders with unsecured claims.
There are many critical responsibilities attached to the work of a conveyancer. Always ensure you engage the service of a properly qualified legal professional.
Written by Karen Britz