Overview of property and conveyancing
Conveyancing is a complicated and time consuming process, particularly in transactions regarding the subdivision or consolidation of properties, the registration of servitudes or transfers of divorce or deceased estates.
In this blog we give you an overview of property and conveyancing.
The transfer process
Once a seller has accepted an offer to purchase, the buyer must produce proof that that their bond application has been successful, and the seller must appoint a transfer (conveyancing) attorney to handle the transfer process.
Transferring attorneys are one of three types of attorneys who are involved in the home buying process:
- Transfer attorneys, or conveyancers, are responsible for registering the property in the new owner’s name,
- Bond attorneys are responsible for registering the bond in the home buyer’s name
- Cancellation attorneys are responsible for attending to existing bond cancellations.
After transfer duty has been paid, all documents were filed with the Deeds Office, and the transfer attorney has reconciled their accounts, paid over all proceeds to the seller, the agent’s commission, and refunded any credit due to the seller, registration of the property can occur, to make the purchaser the new rightful owner of the home.
The duties of a conveyancer
Conveyancers handle the legal transfer of fixed property from one entity to another, which entails that the deed of sale meets all legal requirements, including requesting and collecting supporting information such as the mortgage bond, cancellation figures, title deeds from the seller’s bank, compliance certificates from the seller, and rates clearance certificate amounts from the municipality.
The conveyancer also draughts all necessary documentation, such as the “power of attorney to pass transfer” for the seller to sign, a declaration of marital status, ID number, and bond registration documentation for the purchaser to sign when registering the bond. These must be filed with the Deeds Office for the sale to be registered.
Divorce transfers
Immovable property can only be transferred from one person to another by virtue of registration of the transfer in the Deeds Office. Divorce does not automatically means the transfer of ownership of property, just allows for the recipient spouse to have a claim to the transfer of the share of the previous spouse.
Divorce transfers are complicated since acquisition of ownership in land always requires registration at the Deed’s Registry. A registration of ownership process must be followed.
With a marriage in community of property, the Registrar will endorse the title deed upon registration to show that the previous spouse no longer holds interest in the property and that the former’s rights to the property now lie with the recipient spouse.
With a marriage out of community of property, the spouse who acquires the property will need to undergo a formal Deeds Office process and obtain a new title deed in his/her name.
Assistance of qualified conveyancers will support divorce lawyers through the transfer process to ensure the correct procedures.
How to ensure a successful divorce transfer
Transfer of immovable property per a divorce order takes place in accordance with Section 45 of the Deeds Registries Act 47 of 1937.
You will need a copy of your settlement agreement, divorce order and copies of your title deeds.
The spouse who received a full share of the property must apply to the Registrar of Deeds to endorse the current title deed, displaying only him or her as being the owner. If the divorce order stipulates the immovable property is to be divided in equal shares, both parties must apply to award both parties undivided shares in the immovable property.
If parties were married out of community of property and the divorce order doesn’t mention immovable property, the spouse who has ownership will retain his/her ownership. If there is a bond on the immovable property, the bond will also be endorsed to reflect the substitution of the debtor under the bond. If the person taking transfer cannot afford the bond, the property will be sold, and profits awarded to the said spouse.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
Disclaimer
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.
