Understanding the basics of conveyancing, also known as property ownership transfer, is an essential part of being a property owner. Depending on your situation, this can be a complicated process.
Having a trusted and qualified estate agent can do wonders for reducing your stress levels. They are the ideal mediator and know the tricks of the trade, meaning the whole process typically runs much smoother. Any property ownership transfer will also require the services of an attorney. A transfer attorney will be responsible for the transfer of the property along with the necessary registrations. Depending on your situation, you may well have a much larger team of professionals, but these two are going to be your most important guides.
The typical process of transferring a property takes about three months, with any number of factors affecting this timeline. To allow the process to run as smoothly as possible, be prepared with all necessary documents.
The basic documents you will require include a transfer duty receipt, all relevant compliance certificates, as well as the necessary FICA documentation of the buyer as well as the seller.
It is important to understand your rights, responsibilities, and any costs involved with different types of property ownership transfers. We will look at four broad categories to make sense of this complex process.
Selling your property
A straight-forward sale is the typical scenario we imagine when we refer to the transfer of a property, but it’s not always as simple as you’d like to think.
First off, understand the costs involved. As the seller, you are liable for the following fees: estate agents’ commission (typically between 5% and 7% of the selling price of the property); municipal rates (anything from three to six months’ worth), as well as the costs for all compliance certificates and necessary repairs to obtain these certificates. Depending on whether you have an outstanding bond on your property, you will also be liable for bond cancellation fees.
As the current owner of the property, you are liable for all past and current rates and taxes. Before you can sell, you will need to ensure that all rates for the past two years have been paid in full – and you’ll need a rates clearance certificate to prove it. If your property is located within an estate, you will also need to provide a homeowners certificate, stating that you have paid all necessary levies. This also binds the buyer to abide by the HOA rules once they become the new owners. If your property is bonded, you will also need bond settlement figures and guarantees.
Gifting your property
In some cases, a parent may want to transfer the ownership of a property to their child, rather than bequeathing it in their will. It is important to consider the financial and legal implications of doing so.
All gifts or donations valued at more than R100,000 are subject to a 20% donations tax, which you will be liable for. If this is not paid within six months, this tax becomes the joint responsibility of the child and the parent. This tax is calculated on the value of the property, which will need to be determined by two independent valuations.
Dividing your property
In the case of divorce, you first need to understand your matrimonial regime. Were you married in community of property? If so, the transfer could well be a simple process. You would be eligible for an abbreviated form of transfer, allowing you to bypass much of the administrative steps involved in a typical transfer.
You also would not be paying transfer costs. If you were married out of community of property, you will be following the typical transfer process – and paying all the same fees. The only exception here would be if the property transfer is due to a divorce order.
Where the registered owner of immoveable property has died, his/her property will need to be transferred to another person, normally a family member. The property will often need to be transferred to an heir or beneficiary nominated in the will of the deceased, but sometimes it may be in terms of the Intestate Succession Act.
When a person dies, the Master of the High Court appoints an executor to administer the deceased estate. The executor is the only person who is lawfully authorised and empowered to deal with the assets of the deceased. The purpose is to ensure an orderly winding up of the financial affairs of the deceased, and the protection of the financial interests of the heirs.
Until an executor is appointed, no-one can act on behalf of the deceased estate.
The process of transferring property ownership involves several stakeholders, all of which have a crucial role to play to ensure the transfer is concluded successfully. Having a qualified and reputable estate agent can make your life that much simpler, as they will have the necessary knowledge and contacts to conclude your sale efficiently and correctly.