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Contractual Matters

Documents required for transfer of property

We know that paperwork isn’t everyone’s favourite thing, and while the property transfer process does require quite a few documents, it needn’t be overwhelming for buyers or sellers. That’s why we’ve put together this list of documents required for transfer of property.

The ins and outs of subject to bond approval clauses

Depending on the type of transfer being undertaken (conventional, sectional title, divorce, deceased estate), the required documents may vary slightly.

What documents are needed for a conventional transfer?

These documents are required for all property transfers in South Africa:

Power of Attorney: The seller will have to sign a Power of Attorney document which gives the conveyancing attorney the authority to act on his/her behalf in the Deeds Office in order for the property to be transferred from the seller to the buyer. This document is drafted by the transfer attorneys and presented to the seller for signing.

Draft Deed: This document will be the purchaser’s new title deed once the property has been registered at the Deeds Office. The transfer attorneys will draft this document and submit it for registration.

Transfer Duty Receipt: A transfer duty receipt (or VAT clearance certificate in the case of a VAT registered seller) must be issued by SARS for every property transfer. The transfer attorneys will apply for the transfer duty receipt, and the purchaser will be liable for the payment of the transfer duty amount which is based on the purchase price.

Rates Clearance Certificate: The local authority will issue a rates clearance certificate once they have received payment of the rates clearance figures issued by them. This certificate confirms that the seller’s rates and taxes account is up to date and that all arrears from the previous 2 years have been paid. The transfer attorneys will apply for the rates clearance figures and rates clearance certificate on behalf of the seller.

Homeowners Certificate: If a property forms part of an estate with a homeowners association, confirmation must be provided by this body that all conditions included in the property’s title deed have been met (e.g. all costs owed to the homeowners association must be paid, all conditions of the homeowners memorandum of incorporation have been met and the purchase must agree to become a member of the homeowners association). The transfer attorneys will apply for the clearance figures and the certificate from the homeowners association. The homeowners association may request from the transfer attorneys on registration to attend to a pro-rata split of the levies between the seller and purchaser on date of registration till the date on which the certificate is valid.

FICA Documents: Both seller and purchaser will be required to submit FICA documents as set out by the Financial Intelligence Centre Act. The type of FICA documents required by the parties will depend on the type of seller and purchaser such as a natural person, company and trust. 

Bond Settlement Figures and Guarantees: The seller’s bank will issue settlement figures and guarantees will have to be delivered to the bank’s appointed bond attorneys in line with the settlement figures. This is required in order for the bank to give the go ahead to proceed with the cancellation of the bond registered over the property which will happen simultaneously with the transfer of the property into the purchaser’s name. While notice to cancel a bond may be given by the seller earlier, the transfer attorney will request formal settlement figures on the seller’s behalf once they receive instruction to attend to a transfer. Usually a purchaser will take out a bond which will be registered against the property simultaneously in the Deeds Office with the transfer of the property.  In this case the transfer attorneys will request guarantees from the bond attorneys in line with the settlement figures they received from the bond cancellation attorneys. The bond attorneys will then deliver the guarantees once the purchasers have signed their bond documents and complied with all the bond conditions.  

Compliance Certificates: Electrical, electric fence (where applicable), gas and beetle (coastal regions) compliance certificates must be obtained prior to registration. The offer to purchase will usually indicate which certificates are required to be obtained by the seller. The bond attorneys may also require these in order for them to obtain consent to lodge the matter in the Deeds Office.  

Additional documents required for sectional title transfers

Over and above the documents mentioned above, the following documents must be submitted for the registration of a sectional title transfer:

Levy Clearance Certificate: In terms of Section 15B(3) of the Sectional Titles Act, the body corporate must confirm that all levies have been paid by the seller up to the date of registration. As with rates clearance figures and certificates, the attorneys will request the levy clearance figures and apply for the certificate on behalf of the seller who will be liable for the payment of the outstanding levies. The body corporate may also request the transfer attorneys to attend to the cost split between the seller and purchaser on the date of registration.

Transfer in terms of a divorce order

In the case of a property transfer based on a divorce order, there are a few additional documents and considerations involved.

Power to Transfer: If the parties were married out of community of property, the transferor (the party giving away his/her share) will sign the Power of Attorney as mentioned under conventional transfers. However, if the parties were married in community of property, the transferee (party receiving the property) will apply in terms of Section 45 of the Deeds Registries Act for the property to vest in his/her name.

Transfer Duty Exemption Certificate: Since the property is being transferred in terms of the divorce order and settlement agreement, the transfer is exempt from transfer duty and SARS will issue a transfer duty exemption certificate in terms of Section 9 of the Transfer Duty Act. 

Divorce Order and Settlement Agreement: A certified copy of the divorce order and settlement agreement must be lodged as proof that the property was awarded to the transferee and that the transfer does not affect any third party. It is the responsibility of the transferee to provide this document.

Deceased estate transfers

For a sale of a property out of a deceased estate, there is one additional step required compared to a conventional property transfer:

Consent from the Master of the High Court: The Master of the High Court has to consent to the sale of the property by way of an endorsement on the Power of Attorney. While it is the executor’s responsibility to obtain the consent from the Master’s Office to sell the property, the transfer attorneys will be able to assist with the application to the Master’s Office.

In the case where property from a deceased estate is to be transferred to the heirs, the following additional documents must be obtained:

Power to Transfer: In a similar way to a transfer based on a divorce, the relationship between the parties will determine whether a Power of Attorney must be signed (where the heir was married out of community of property to the deceased) or whether a Section 45 application must be brought by the executor and surviving spouse (where the heir was married in community of property to the deceased).

Transfer Duty Exemption Certificate: As with a transfer based on a divorce order, a transfer to the heirs of a deceased estate is exempt from transfer duty and SARS will issue a exemption certificate in terms of Section 9 of the Transfer Duty Act.

Proof of Inheritance: Proof of inheritance, such as a copy of the will certified by the Master of the High Court, will have to be lodged in the Deeds Office. If no will was left, a certified copy of the Next-of-Kin Affidavit confirming the heirs must be lodged in the Deed Office. It is the executor’s responsibility to provide the transfer attorneys with a copy of the relevant document certified by the Master of the High Court.

Section 42(1) Certificate: The conveyancer will have to submit a certificate in terms of Section 42(1) of the Estate Administration Act that the deceased estate’s Liquidation and Distribution account has been approved by the Master of the High Court and that the Liquidation and Distribution account has laid open after advertisement for 21 days without any objection against it.  Some Deeds Offices may require that a Master certified copy of the Liquidation and Distribution account is lodged in the Deeds Office. It is the executor’s responsibility to provide the transfer attorneys with the Master of the High Court’s confirmation that no objection has been laid against the Liquidation and Distribution account. The executor will also have to provide the master certified copy of the approved Liquidation and Distribution account. 

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Contractual Matters

Documents required for transfer of property

We know that paperwork isn’t everyone’s favourite thing, and while the property transfer process does require quite a few documents, it needn’t be overwhelming for buyers or sellers. That’s why we’ve put together this list of documents required for transfer of property.

The ins and outs of subject to bond approval clauses

Depending on the type of transfer being undertaken (conventional, sectional title, divorce, deceased estate), the required documents may vary slightly.

What documents are needed for a conventional transfer?

These documents are required for all property transfers in South Africa:

Power of Attorney: The seller will have to sign a Power of Attorney document which gives the conveyancing attorney the authority to act on his/her behalf in the Deeds Office in order for the property to be transferred from the seller to the buyer. This document is drafted by the transfer attorneys and presented to the seller for signing.

Draft Deed: This document will be the purchaser’s new title deed once the property has been registered at the Deeds Office. The transfer attorneys will draft this document and submit it for registration.

Transfer Duty Receipt: A transfer duty receipt (or VAT clearance certificate in the case of a VAT registered seller) must be issued by SARS for every property transfer. The transfer attorneys will apply for the transfer duty receipt, and the purchaser will be liable for the payment of the transfer duty amount which is based on the purchase price.

Rates Clearance Certificate: The local authority will issue a rates clearance certificate once they have received payment of the rates clearance figures issued by them. This certificate confirms that the seller’s rates and taxes account is up to date and that all arrears from the previous 2 years have been paid. The transfer attorneys will apply for the rates clearance figures and rates clearance certificate on behalf of the seller.

Homeowners Certificate: If a property forms part of an estate with a homeowners association, confirmation must be provided by this body that all conditions included in the property’s title deed have been met (e.g. all costs owed to the homeowners association must be paid, all conditions of the homeowners memorandum of incorporation have been met and the purchase must agree to become a member of the homeowners association). The transfer attorneys will apply for the clearance figures and the certificate from the homeowners association. The homeowners association may request from the transfer attorneys on registration to attend to a pro-rata split of the levies between the seller and purchaser on date of registration till the date on which the certificate is valid.

FICA Documents: Both seller and purchaser will be required to submit FICA documents as set out by the Financial Intelligence Centre Act. The type of FICA documents required by the parties will depend on the type of seller and purchaser such as a natural person, company and trust. 

Bond Settlement Figures and Guarantees: The seller’s bank will issue settlement figures and guarantees will have to be delivered to the bank’s appointed bond attorneys in line with the settlement figures. This is required in order for the bank to give the go ahead to proceed with the cancellation of the bond registered over the property which will happen simultaneously with the transfer of the property into the purchaser’s name. While notice to cancel a bond may be given by the seller earlier, the transfer attorney will request formal settlement figures on the seller’s behalf once they receive instruction to attend to a transfer. Usually a purchaser will take out a bond which will be registered against the property simultaneously in the Deeds Office with the transfer of the property.  In this case the transfer attorneys will request guarantees from the bond attorneys in line with the settlement figures they received from the bond cancellation attorneys. The bond attorneys will then deliver the guarantees once the purchasers have signed their bond documents and complied with all the bond conditions.  

Compliance Certificates: Electrical, electric fence (where applicable), gas and beetle (coastal regions) compliance certificates must be obtained prior to registration. The offer to purchase will usually indicate which certificates are required to be obtained by the seller. The bond attorneys may also require these in order for them to obtain consent to lodge the matter in the Deeds Office.  

Additional documents required for sectional title transfers

Over and above the documents mentioned above, the following documents must be submitted for the registration of a sectional title transfer:

Levy Clearance Certificate: In terms of Section 15B(3) of the Sectional Titles Act, the body corporate must confirm that all levies have been paid by the seller up to the date of registration. As with rates clearance figures and certificates, the attorneys will request the levy clearance figures and apply for the certificate on behalf of the seller who will be liable for the payment of the outstanding levies. The body corporate may also request the transfer attorneys to attend to the cost split between the seller and purchaser on the date of registration.

Transfer in terms of a divorce order

In the case of a property transfer based on a divorce order, there are a few additional documents and considerations involved.

Power to Transfer: If the parties were married out of community of property, the transferor (the party giving away his/her share) will sign the Power of Attorney as mentioned under conventional transfers. However, if the parties were married in community of property, the transferee (party receiving the property) will apply in terms of Section 45 of the Deeds Registries Act for the property to vest in his/her name.

Transfer Duty Exemption Certificate: Since the property is being transferred in terms of the divorce order and settlement agreement, the transfer is exempt from transfer duty and SARS will issue a transfer duty exemption certificate in terms of Section 9 of the Transfer Duty Act. 

Divorce Order and Settlement Agreement: A certified copy of the divorce order and settlement agreement must be lodged as proof that the property was awarded to the transferee and that the transfer does not affect any third party. It is the responsibility of the transferee to provide this document.

Deceased estate transfers

For a sale of a property out of a deceased estate, there is one additional step required compared to a conventional property transfer:

Consent from the Master of the High Court: The Master of the High Court has to consent to the sale of the property by way of an endorsement on the Power of Attorney. While it is the executor’s responsibility to obtain the consent from the Master’s Office to sell the property, the transfer attorneys will be able to assist with the application to the Master’s Office.

In the case where property from a deceased estate is to be transferred to the heirs, the following additional documents must be obtained:

Power to Transfer: In a similar way to a transfer based on a divorce, the relationship between the parties will determine whether a Power of Attorney must be signed (where the heir was married out of community of property to the deceased) or whether a Section 45 application must be brought by the executor and surviving spouse (where the heir was married in community of property to the deceased).

Transfer Duty Exemption Certificate: As with a transfer based on a divorce order, a transfer to the heirs of a deceased estate is exempt from transfer duty and SARS will issue a exemption certificate in terms of Section 9 of the Transfer Duty Act.

Proof of Inheritance: Proof of inheritance, such as a copy of the will certified by the Master of the High Court, will have to be lodged in the Deeds Office. If no will was left, a certified copy of the Next-of-Kin Affidavit confirming the heirs must be lodged in the Deed Office. It is the executor’s responsibility to provide the transfer attorneys with a copy of the relevant document certified by the Master of the High Court.

Section 42(1) Certificate: The conveyancer will have to submit a certificate in terms of Section 42(1) of the Estate Administration Act that the deceased estate’s Liquidation and Distribution account has been approved by the Master of the High Court and that the Liquidation and Distribution account has laid open after advertisement for 21 days without any objection against it.  Some Deeds Offices may require that a Master certified copy of the Liquidation and Distribution account is lodged in the Deeds Office. It is the executor’s responsibility to provide the transfer attorneys with the Master of the High Court’s confirmation that no objection has been laid against the Liquidation and Distribution account. The executor will also have to provide the master certified copy of the approved Liquidation and Distribution account. 

Follow Snymans on Facebook for more legal information, tips and news about property.

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