Buying a house is probably the biggest and most important
investment you will ever make.
When you do find a house you wish to buy and before you
sign any deed of sale (also sometimes referred to as an
‘Offer to Purchase’), follow these simple guidelines:
• Examine the house thoroughly. Enquire about the roof,
gutters, electrical wiring, foundation etc. Should you
have any doubts at all, consult an expert to examine
the house. Should there be any defects, provide in
the deed of sale for their correction by the seller at
• Before you sign a deed of sale, give the document to
your attorney to examine. Ask about anything that is
• Enquire about any additional costs, such as rates and
transfer costs – your attorney will have the answers.
All provisions and promises must form part of the
written contract. Verbal agreements are not enforceable.
A document signed by you and then accepted by the
buyer could become a binding agreement.
• Ensure that your finances are sound. Should you need
a bond, also make provision for the costs or valuation
of the property and of registration – your attorney can
tell you about this.
• If you are not certain whether you will be able to obtain
a loan to provide for the purchase price and / or other
costs, make the sale subject to the obtaining of a loan.
• Ensure that the deed of sale provides for the issue of a
beetle-free certificate at the expense of the seller in
the Cape provinces and KwaZulu-Natal, and for a
certificate of compliance in respect of the electrical
installation in all provinces.
• Does the seller require a deposit on the selling price?
Should this be the case, arrange for payment in trust to
any attorney pending transfer and for safekeeping in a
special savings account until the house is in your name.
With the consent of both parties the attorney may invest
these monies subject to the condition that the interest
earned will be for your own account.
• Take note of the date of occupation in the deed of
sale. Should you move in before the house is in your
name, you would be expected to pay rent. Make sure
who is responsible for the payment of taxes, levies and
insurance premiums during this period. Should the sale
fall through after you have moved in, you would
naturally have to move out again with the attendant
expense and inconvenience.
• If the seller wants to remove any items such as plants,
cupboards etc, this needs to be explicitly set out in the
contract. Any loose items (such as curtains, swimming
pool equipment etc) must also be specified.
‘Conveyancing’ describes the legal process in terms of which rights
in fixed property are registered in the Deeds Office. These rights include
ownership, mortgage, servitude, mineral rights and others. All these
rights vest legally in a person only once registration has taken place.
The registration process, therefore, places an official ‘seal’ on a person’s
rights in fixed property.
A conveyancing transaction involves a chain of steps which begins with
the deeds of sale and which continues through to the ultimate registration
of ownership and the reconciliation of finances and payments.
‘Fixed property’ is any land, whether it is unimproved or improved by
the addition, for example, of a house, farm or sectional title unit.
’Conveyancer’: A conveyancer is admitted as such by the High Court
after having completed a special qualifying examination. Only a person
who has been admitted by the High Court as an attorney, may practise
as a conveyancer. All conveyancers are, therefore, also attorneys, but
not all attorneys are necessarily conveyancers. Who appoints a conveyancer? In most provinces in South Africa, the
usual practice is for the seller to appoint a conveyancer for a property
transaction, although this, like other aspects of a sale agreement, can
be varied as a result of negotiation between the parties.
The purchaser may also appoint a conveyancer to advise him or her, but
these charges will be over and above the conveyancing costs submitted
by the seller’s conveyancer, who will be doing the actual transfer.
In terms of the Estate Agents Code of Conduct in the Estate Agency
Affairs Act, 1976, no estate agent shall without good and sufficient
cause, directly or indirectly, solicit, encourage, persuade or influence
any party or potential party to a pending or a complete transaction to
utilise or refrain from utilising the service of any particular attorney,
conveyancer or firm of attorneys.
Why is a conveyancer necessary?
A great deal is at stake in the transfer of fixed property. It is generally
the largest single asset that a person owns and the transaction for the
purchase or sale of a fixed property is probably the most important
contract undertaken by individuals.
The law, therefore, provides that only qualified conveyancers may attend
to the transfer of fixed property and related transactions. This is not only
to give proper protection to the rights and interest of the public, but also
to safeguard the integrity of the South African land registration system,
which is universally regarded as one of the best in the world.
When all the checks have been made, all the procedures followed by the
conveyancer and the property has been registered in the name of the
purchaser, the purchaser can be assured that he or she has the best title
to the property.
What recourse do you have if the conveyancer fails to do the job?
Conveyancers are subject to the disciplinary powers of the law society of
the province in which they practise. Law societies will act in the interest
of the public. A complaint may be lodged with the relevant law society.
If someone believes that a conveyancer has not done his/her job
properly, he/she may lodge a complaint with the relevant law society
which will investigate the matter and, in appropriate cases, will
discipline the conveyancer.
If the conveyancer has been negligent and the purchaser or the seller
should suffer any loss as a result of such negligence, they may have a
claim against the conveyancer for the amount of the loss.
If you have any questions regarding using an attorney when dealing with property, please contact Sarah on 041 373 0030 or email firstname.lastname@example.org
Information kindly provided by the Law Society of South Africa