Conveyancing (or conveyance) is the legal term for the process whereby a person, company, close corporation or trust becomes the registered and legal owner of immovable property and ensures that this ownership cannot be challenged. It also covers the process of the registration of mortgages.
Conveyancing in South Africa can only be carried out by a licensed conveyancer, i.e. a lawyer who has passed the National Conveyancing Examination.
After an agreement of sale has been made, a conveyancer is appointed (normally by the seller, although the buyer will pay the fees) and instructions are sent to him by the estate agent. These include the names of both the buyer and the seller, a copy of the agreement of sale, and the passport numbers and marital status of the buyer and seller.
The conveyancer should:
- protect the interest of his client, the Seller, at all times and these interests should outweigh all other considerations except of course issues of legality;
- inform the seller of the conveyancing procedure and keep the seller informed of the progress of the transaction;
- advise the seller on the content of the Offer to Purchase, especially regarding suspensive conditions;
- advise the seller on the cancellation of his bond, any penalties, notice periods and other administrative charges which may affect the settlement figure;
- obtain the seller’s instruction before issuing any guarantees in respect of the transaction;
- do everything in his power to register the transaction on or as close as possible to the date agreed to in the offer to purchase;
- advise the seller on his obligations in terms of the offer to purchase, so as to ensure that the transfer is not delayed;
- meet with the seller to explain, as well as sign the necessary documentation in order to conclude the transaction;
- prepare the deeds for lodgement with care, so as to minimise the risk of rejection of the documentation by the Deeds Office;
- inform the seller of the transfer on the day of registration;
The process of selling and transferring your valued property can have many pitfalls if the correct advice is not received. This is why it is imperative to be cautious and maintain serious regard for your own interests when choosing the right attorney to take responsibility for the transfer of ownership.
When looking for a conveyancer one must examine the following pre-requisites:
- Is the conveyancer known?
- Is the conveyancing firm well established?
- Does the conveyancer have experience? Is the firm of appointed attorneys outsourcing the transaction to a conveyancing firm unknown to the seller? Not all firms have conveyancers.
- Does the conveyancer have experience in what you require to be done?
This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)