Property Transfer and Conveyancing South-Africa

• Act A form of legislation passed by the courts for the government.
• Addendum A supplementary and separate agreement to an original sale contract, and should it contradict the original contract, it is presumed to overrule it.
• Administration Fee The monthly cost that the bank charges to handle a mortgage loan.
• Affordability Analysis An analysis of a buyers income, liabilities and available funds, in order to determine their ability to afford the purchase of a property.
• Agreement of Sale Also referred to as the Offer to Purchase. It is a legally binding document signed by the buyer and seller, whereby the buyer agrees to buy a property from the seller, who agrees to sell the property to the buyer for a proposed purchase price and conditions on which the sale will take place.
• Alienate The Alienation of Land Act 68 of 1981 governs the alienation (selling, exchanging or donating) of immovable property.
• Amortization Loan payment by equal periodic payments calculated to pay off the mortgage at the end of a fixed period.
• Antenuptial Contract An agreement entered into by parties prior to getting married, they will then be married out of community of property.
• Appraisal An estimate of the value of property, made by a qualified professional called an "appraiser/valuator ".
• Arbitration Procedure whereby parties to a dispute appoint an arbitrator, whose decision is final and binding, to settle the dispute.
• Assessment The bank’s assessed valuation of the property.
• Association Agreement An agreement concluded between the members of a close corporation, which states the contractual capacities of the members.
• Auction Method of selling a property to a person who makes the highest bid.
• Bank A financial institution.
• Body Corporate The controlling body of a sectional title scheme, responsible for the costs of upkeep and maintenance of the property.
• Bond See mortgage.
• Bond Registration Fees Fees and costs payable by the borrower to the bond attorneys who are attending to the registration of the bond at the Deeds Office.
• Bond Term The time period, over which you have to repay your homeloan.
• Borrower The person who applies for and receives a mortgage loan with the intention of repaying the full loan amount.
• Breach Clause A condition in a contract, which obliges the parties to give the defaulting party written notice to remedy their breach of contract within a specific period (usually seven days) before the contract can be cancelled.
• Bridging Finance A loan that is collateralised by the borrower's present home sale in progress before the present home is transferred.
• Building Loan A loan used to finance building a house. Usually paid in trances as the building works progress and upon inspection by the banks inspectors.
• Cancellation Attorney This attorney attends to the cancellation of the seller’s bond and is appointed by the bank, which holds the current mortgage bond.
• Cancellation Figures Outstanding amount on the mortgage, interest and any other costs required to settle the mortgage bond.
• Capital Gains Tax All taxpayers are taxed by the government on the profit they make from the sale or disposal of an asset , such as property. Primary residence excluded.
• Cession A document signed by the borrower, ceding their life policy to the bank, as surety for a mortgage.
• Clearance Certificate Issued by the relevant authority stating that the rates or levies for the property have been paid up to a future date.
• Close Corporation (CC) A business entity registered in terms of the Close Corporations Act 69 of 1984. A maximum of ten natural people can be members of a CC. It may conclude agreements of sale or leases in it’s own name.
• Cluster A freehold property in a development of similar houses, usually with good security and limited access.
• Code of Conduct A set of ethical rules drawn up by the Estate Agency Affairs Board to regulate estate agents’ ethical conduct.
• Cancellation Attorney This attorney attends to the cancellation of the seller’s bond and is appointed by the bank, which holds the current mortgage bond.
• Collateral The amount of security provided to secure a mortgage bond.
• Commercial Property Property used for business or office use.
• Common Property It is all the land in a sectional title complex, as well as those parts of the buildings which are not included in a particular section or unit. Common property can include stairwells, lifts or elevators, carports, swimming pools, gardens, etc.
• Commission Remuneration paid to a estate agent by their client. Usually the Seller.
• Common Law The law that automatically applies if the parties have not reached an agreement on a specific legal issue in the Offer to Purchase. The South African common law is the Roman Dutch Law.
• Company A trading entity that is commonly used for commercial activity and may enter into agreements of sale or lease in its own name.
• Condition A clause that renders the operation and consequences of the contract as a whole dependent on an uncertain future event. A suspensive condition suspends the operation of the contract for a period of time, subject to the occurrence of a future event, and only if and when the condition has been fulfilled will an enforceable contract exist. In the case where a resolutive condition is stipulated, the contract is immediately binding and will remain binding unless the condition is not fulfilled.
• Conditions of Title Restrictive conditions limiting an owner's rights over their property, which are recorded on the property’s title deed. They cover matters such as building limitations and servitudes.
• Consolidation of Debt Applies when a customer is paying off two products bought on credit and he chooses to combine both products and pay them off as one debt, possibly taking advantage of a lower rate.
• Contract A legally enforceable agreement, for example a lease or sale.
• Conveyancer An attorney who is usually appointed by the seller and is qualified to attend to the registration and transfer of immovable property from a seller to a purchaser and the registration of any bonds.
• Conveyancing Costs Costs and fees payable to the conveyancer.
• Cooling-off Right A statutory right, recorded in Section 29A of the Alienation of Land Act, giving the buyer of a residential property costing R250,000 or less, the right to withdraw from the sale within five working days of signing the offer to purchase. It does not apply if the buyer is a company, close corporation or trust.
• Costs Clause Makes provision in a mortgage loan document, securing an additional amount lent, to cover potential costs, such as transfer and bond costs.
• Credit Record The credit history and current status of a borrower's credit standing.
• Creditor Someone to whom you owe money.
• Debit Order An instruction to the bank to debit your account monthly with your monthly expenses, i.e. your home loan installment.
• Debtor Someone who owes you money.
• Deed of Sale Also referred to as the Agreement of Sale or Offer to Purchase.
• Deeds Office A government department responsible for the registration of transfer of immovable property.
• Deed Office Registration Fees Fees charged by the Deeds Office for registering the mortgage bond and title deed.
• Default Failure to meet legal obligations in a contract. Also see Breach
• Defect A patent defect is a clearly visible defect. A latent defect is a fault or flaw that is not immediately detectable, or is hidden from view on inspection of the property.
• Deposit Money you have readily available that you use as part of the payment on your new property. When renting property, a deposit is an amount that you pay upfront and is used as security in the event that you cause any damage to the property while renting it.
• Domicilia Citandi et Executandi Also referred to as Domicilium. It is the physical address a person gives for any legal documents and notices that might have to be served, it is the place where a person is deemed to be a permanent resident and may not be be a PO Box or Private Bag Address. . If you have been sent a document or notice to this address, you will be deemed to have received it, even if you did not in fact receive it.
• Domicilium See Domicilia Citandi et Executandi.
• Duet House One of two separate free-standing or attached units that have been built on one stand.
• Duplex A sectional title unit on two levels with stairs.
• Dwelling Any house, flat, apartment, room, hostel room, hut, shack, outbuilding, garage or demarcated parking space.
• Electrical Compliance Certificate A certificate, which is issued by a qualified electrician stating that the electricity installation for a property, from its supply point, is safe according to the Occupational Health and Safety Act. The cost of this and any electrical repairs that need to be made are for the seller’s account. It is legally required in order for the property to be transferred into the purchaser’s name.
• Endorsement A note made on the title deed of a property by the Registrar of Deeds.
• Entomologist’s Certificate Legally required in some coastal provinces before transfer of a property can take place, confirming that its structure is free of wood borer or termite infestation.
• Equity The value of a property an owner has over and above the mortgage against the property.
• Escape Clause A condition in a contract, when a buyer is given time to sell his property first, giving the seller the right to cancel the agreement if he gets a higher offer from another buyer.
• Estate When a person dies, all their assets and liabilities will be placed in their deceased estate, which is wound up by an executor.
• Exclusive Use Area The owner of a sectional title unit can never become the owner of any portion of common property, but they can acquire the right of the exclusive use of a certain portion, such as gardens and parking bays.
• Expropriation Procedure where a property is taken over, usually by local authorities, for specific purposes in the public interest.
• Finance Charges The interest charged on a loan.
• First Mortgage The primary lien against a property.
• Fixed Installment The fixed monthly payment (including interest) due on a mortgage loan. It remains constant for a certain period, and goes hand-in-hand with Fixed Interest Rates.
• Fixed Interest Rate The mortgage interest rate will remain the same for a specified term of the mortgage for the original borrower.
• Fixtures and Fittings Attachments to a home, which are deemed to permanently belong to it. If it is permanently attached, nailed or screwed into the floor, wall or ceiling, it is a fixture.
• Foreclosure A legal process by which the lender or the seller forces a sale of a mortgaged property because the borrower has not met the terms of the mortgage. Also known as a repossession or sale in execution of property.
• Freehold A free-standing house on a plot of ground with its own Erf number. Full Title Describes the transfer of full ownership rights to the buyer.
• Guarantee A formal letter issued by a financial institution to the transferring attorney, undertaking to pay the purchase price (or outstanding amount) on registration of transfer of the property into the name of the buyer.
• Home Owners Insurance Insurance taken out to cover your property from damage caused by fire, rain, a broken geyser, etc.
• Homeloan An agreement between the customer and a bank whereby the bank lends the customer money in return for a security (mortgage bond) being registered over the property in the bank’s favor.
• House Rules These are the rules governing the control and management of the property in a sectional title development
• Huur Gaat Voor Koop ‘ Lease goes before sale’ – where leased properties are sold before the lease expires, the tenant may remain in occupation of the premises until the lease expires.
• Immovable Property Land and everything that is permanently attached to it.
• Initiation Fee A once-off fee charged by the bank to offset the cost of opening the mortgage account.
• Insolvent A person who is unable to meet his debts or discharge liabilities.
• Installment The regular monthly amount that a borrower agrees to pay on an outstanding debt to a lender.
• Interest The fee charged for borrowing money.
• Interest Bearing Account When attorneys and/or realtors hold money for clients, it is deposited into separate Interest Bearing Accounts, until these monies and interest accrued during this time have to be paid out to whom they are owed.
• Interest Rate The percentage of a loan that a financial institution charges, which is payable monthly.
• Investor A money source for a lender.
• Joint Income The total gross income of the mortgage applicants
• Joint venture An investment entity formed by one or more entities in order to acquire or develop and manage assets.
• Judgement A legal recording of a person’s inability to honor a debt.
• Landlord The person who lets out a property to someone else.
• Latent Defect See defects.
• Lease Agreement A contract whereby the landlord allows the tenant temporary use of a dwelling, in return for payment, known as rent.
• Legal Entity A company, close corporation or trust
• Lessee A person who occupies a property (also known as a tenant), but does not own it and pays rent in return.
• Lessor The person who rents out a property to someone else.
• Levy Levy is the owner of a sectional title unit’s proportionate share of the costs incurred by the complex for the month.
• Levy Clearance Certificate Issued by the body corporate of a sectional title scheme stating that the levy has been paid to a future date in respect of the property.
• Liabilities A person's long-term and short-term financial obligations.
• Lien Where a person has improved someone else’s property or has incurred certain expenses in respect thereof, he may retain possession of such property until the debt due to him has been discharged, it is the right to retain possession.
• Limited Real Right A registered right over someone else’s property, such as servitude's and mortgage bonds.
• Lodgement The act of handing in the necessary documents at the Deeds Office for examination and registration of transfer.
• Mandate An instruction, authority or agreement given to a estate agent by a seller, to market their property.
• Market Value The price that a willing and financially able buyer would pay, to a willing seller, for a property in a particular area at a given time.
• Married In Community of Property Parties have a joint estate and any immovable property will be registered in both spouses’ names.
• Maturity The date on which the principal balance of a loan becomes due and payable.
• Memorandum of Incorporation This document forms part of the constitution of a company and contains valuable information about the company.
• Mortgage An agreement between the customer and a bank in the form of a home loan, whereby the property is used as the security for the loan. It is a legal document that pledges a property to the lender as security for payment of a debt.
• Mortgage Originator An individual or company that assist buyers in applying for a mortgage, homeloan or building loan, with the different banks.
• Mortgagee The lender usually a bank, that advances or lends money on the security of a property purchased.
• Mortgagor The borrower, who borrows from a lender by mortgaging his property to the lender as security.
• Net Income The borrower's gross income minus tax and other deductions.
• Nominee The person nominated or appointed by another person for a specific purpose.
• Null and Void A legal expression, meaning a final cancellation or lapse of an agreement without any legal effect.
• Occupation The date when the buyer is entitled to physically occupy the new property.
• Occupational Rent An amount paid by the person occupying the property to the party in whose name the property is registered, if the registration of transfer does not take place at the same time as the occupation date.
• Offer to Purchase See Agreement of Sale.
• Option An offer made to a person coupled with an undertaking by the person making the offer not to revoke his offer for a specific period.
• Participation Quota Used to calculate the individual owner’s monthly levy in a sectional title, it is determined by dividing the size of each section into the total floor area of all the sections.
• Partnership A contact between a minimum of two and a maximum of twenty persons, to carry on business in common. There are no formalities required to start a partnership and it is not a separate legal entity. Partners are personally liable for partnership debts.
• Patent Defect See defects.
• Pre-approval Assessment by a financial institution, it states the amount of the home loan a person qualifies for.
• Possession It passes to the buyer on registration of transfer, with all obligations and rights to the property passed to the new owner.
• Power of Attorney A legal document authorizing one person to act on behalf of another.
• Progress Payments Payments made to the building contractor, by the bank, from the customer’s building loan account, as building work progresses. The assessor does an inspection and releases the retention accordingly.
• Rates and Taxes Taxes are levied on all property owners by the municipality. Rates are included in the levy if you buy Sectional Title. They are payable on a monthly basis and are calculated as a percentage of the value of the property.
• Rates Clearance Certificate Issued by the local authority stating that the rates and taxes have been paid to a future date in respect of the property.
• Real Right A right over or in respect of immovable property and registered against the title deed of the property.
• Realtor A person licensed to negotiate and transact the sale of real estate on behalf of the property owner. Also see estate agent
• Registration of Transfer The process whereby ownership of property transfers from the seller to the buyer via a Deed of Transfer.
• Repo Rate A credit management tool used by the South African Reserve Bank to regulate customer spending in the country.
• Resolutive Condition The contract is immediately binding and will remain binding unless the condition is not fulfilled.
• Risk Profile A person’s credit worthiness.
• Sectional Title A development made up of sections, whereby all section owners are members of a Body Corporate. Each section owner is responsible for their own section.
• Sectional Title Register A register of sections in a sectional title scheme registered in the deeds office.
• Second Bond An additional loan on a home.
• Security Collateral for the bank that a client pledges in case they default on their mortgage payment.
• Sequestrated Declaring a person insolvent and passing his/het estate into the hands of the Master of the High Court
• Servitude A registered right (as per the title deed) that a person has over the immovable property of another.
• Shareblock A buyer acquires a share in a company that owns the shareblock scheme, which entitles the buyer to use and occupy a specific unit. A shareblock buyer never receives the title to the unit.
• Simplex A sectional title unit on one level with no stairs.
• Smallholding A property of maximum 20 hectares situated within close to a built-up area.
• Stamp Duty A tax imposed by the government. Discontinued
• Statutory Law Written law of the country.
• Subdivision
• Surety A person who stands as guarantor for a loan for someone else.
• Survey
• Surveyor General’s Diagram A diagram that shows sub-divisions, servitudes and expropriations.
• Suspensive Conditions Conditions written into the Offer to Purchase by either party that must be fulfilled for the agreement to become unconditional and legally binding.
• Tenant A person who occupies a property, but does not own it and pays rent in return.
• Title Deed A document that gives evidence of an individual's ownership of property. It includes the following information about the property: names of the current and previous owners; a full description including it’s square meterage; the purchase price paid by the existing owner; all conditions restricting the use; and all limited real rights registered.
• Townhouse A general term for either a simplex or a duplex
• Transfer Costs Costs payable for the registration of a property and include transfer duty, conveyancing fees, and registration fees.
• Transfer Duty A tax levied by the government on the transfer of land. If the purchase price includes VAT no transfer duty is payable.
• Transferring Attorney Appointed by the seller to attend to the transfer of the property into the name of the buyer.
• Trust A contract between the founder and the trustee in terms of which the trustee is to administer the trust fund for the benefit of the beneficiaries.
• Trust Account The separate interest bearing accounts used when attorneys and/or realty companies hold money for people, until these monies and interest have to be paid out to whom they are owed.
• Trustee A person appointed to manage the affairs and assets of a trust. In terms of sectional title, the trustees attend to the day-to-day running of the scheme, which includes the collection of levies and the employment and management of staff.
• Valuation Fees The amount that a financial institution charges to assess the property prior to granting the finance that has applied for.
• Value Added Tax (VAT)Tax on goods that is levied on the value added that results from each exchange. If the seller is a "VAT Vendor", VAT may be payable and not transfer duty, or, if the Purchaser is a Vendor, transfer duty may be payable
• Voetstoots  To sell it as it stands” without any guarantees given by the seller as to the condition of the property, the seller therefore cannot be held responsible for latent or patent defects. The property is sold "as is".
• Waiver of Lien A legal document where a contractor waives his common law right to hold control over a property if he is not paid in full.
• Zoning The purpose for which your property may be used, for example, residential or business as deemed by your local authority.

What is a contract?

A contract is an agreement between two or more people in terms of which one party offers to do, deliver or not do something, and the other part accepts this offer. Usually, the party who accepts the offer must remunerate the other party or do something in exchange.

2. What are the requirements for a valid contract?

For a valid contract, the following must occur:
The parties must agree on all the essential terms thereof. One of the parties must make a firm offer to the other party and acceptance of the offer must, in turn, be communicated to the party who made the offer.
The parties to the contract must have the legal power to conclude such an agreement.
Minors, (persons under 18) or people who are mentally ill, for instance, may not enter into contracts.
Parties may not contract to do something illegal.

3. Must all contracts be in writing to be valid?

No. The most common of all misconceptions concerning contracts is that they must be in written form to be valid. If this were so, the majority of all contracts concluded daily would be invalid. Purchasing good, going to movies, using public transport and eating at a restaurant are examples of activities that include the conclusion of valid contracts as no specific legal formalities (such as reducing the contract to writing) are required. There are, however, exceptions and in certain specific instances, the law requires that the contract is in written form. If the parties do not comply with this requirement and one of the parties is unhappy with the outcome of the arrangement, then the arrangement cannot be enforced in some of the instances where writing is a requirement. Some important examples of contracts that must be in writing, with or without other formalities, are marriage contracts, donations, the sale of land (of which the hire-purchase agreement is an example).

4. What are the advantages of reducing a contract to writing,  if the law does not require this in the specific instance?

The terms or contents of a contract are easily proved if the contract is reduced properly to writing. Remember that an attorney draws up contracts as part of his daily work and is thus able to express more clearly in writing what the parties intend. A party relying on an oral contract will probably have difficulty in proving the contents in a court of law.

5. What are the pitfalls of signing a written contract that has been drawn up by the other party?

The contract could contain terms that were not part of the verbal negotiations and which are included solely for the benefit of the other party. Conversely, the contract might not contain terms or stipulations to your benefit which were agreed upon during the verbal negotiations. Remember: when in doubt, consult an attorney and go through written agreements very carefully. Never sign a contract without reading it merely because you are in a hurry or want to rid yourself of an irritating salesman.

6. What is a breach of contract?

This means that one of the parties has in fact broken the agreement in one or more of the following ways:
He has not done or delivered what he promised regarding the contract.
He has not paid for goods delivered by the other party.
He has refused to carry out the contract.
He has prevented the other party from doing or delivering what the other party must do or deliver according to the contract.
He has delivered or done what he promised to do in terms of the contract, but his performance is defective and is completely useless or only of partial use to the other party.
He has, in fact, prevented himself from being able to perform regarding the contract.Where a party to a contract has breached the agreement, the innocent party should consult an attorney who will institute an action if necessary.

7. What may the purchaser do if he buys something that has a hidden fault?

The law states that the seller is responsible or liable for and hidden or latent faults that exist in the article bought if they were present at the time of sale. Purchasers should beware of buying something that is sold "voetstoots" or "as-is" or "as it stands" because in selling this way the seller has excluded his
responsibility or liability for any hidden faults.

8. What is a warranty or guarantee and how does it affect the buyer?

This is usually a statement made about a product by the seller which he promises to make good. For example, the seller may warrant that a particular television set he is selling will not break down in four years. If it does, then the seller will not break down in four years. If it does, then the seller must make good his promise and repair the unit at no extra charge. Purchasers should beware of guarantees that absolve the seller from liability for hidden defects in the article bought in exchange for relatively little protection for the buyer. Remember that not all or any representations made by a seller are guarantees. Therefore, ask the seller exactly what he means by a certain statement that relates to the product.If you are selling or buying property in South-Africa you can count on Conveyancing24.co.za to offer you a competitive written quotation. Our free written quotation will be fully itemised with no hidden costs. In just a few clicks you can receive a written conveyancing quote. Get started – Click HereFor further information or to book a consultation please contact us on:

Bloemfontein Registrar of Deeds
Mr David Mngcolwani (Registrar)c/o Nelson Mandela & Aliwal Str, Bloemfontein, 9300(051) 403-0342(086) 698-4947David.Mngcolwana(@)drdlr.gov.za

Johannesburg Registrar of Deeds
Ms Makaziwe Ntuli (Registrar)Marble Tower Building, c/o Jeppe & Von Weiligh Str, Johannesburg, 2000(011) 843-8300(011) 843-8407Makaziwe.Ntuli(@)drdlr.gov.zaking williams townMr Nkululeko Mantanga (Registrar)113 Alexandra Road, Private Bag X7402, King Williams Town, 5600(043) 642-2741(043) 642-4539Nkululeko.Mantanga(@)drdlr.gov.za 

Mpumalanga Registrar of Deeds
25 Bell Street, Old BMW Building,
Private Bag X11239, Mbombela, 1200
(013) 756-4000
(013) 756-4092

Pretoria Registrar of Deeds
Adv. Audrey Gwangwa (Registrar)Merino Building, 140 Pretorius Street cnr Bossman Street, Tshwane, 0001(012) 338-7035(012) 338-7151Audrey.Gwangwa(@)drdlr.gov.za

Cape Town Registrar of Deeds
Mr Kasavel Pillay (Registrar)90 Plein Str, Private Bag X9073, Cape Town, 7975(021) 464-7601(021) 464-7725Kasavel.Pillay(@)drdlr.gov.za

Kimberly Registrar of Deeds
New Public Building: Floors 9-10, c/o Knight & Stead Str, Kimberley, 8301
(053) 832-7228
(053) 832-5888

Llimpopo Registrar of Deeds
Dorp Street, Polokwane, 0700
(015) 283-2300

Pietermaritzburg Registrar of Deeds
300 Pietermaritz Street, Private Bag X9028, Pietermaritzburg, 3200
(033) 355-6810
(033) 345-5101

Umtata Registrar of Deeds
c/o Owen & Leeds Street, Botha Sigcau Building, Mthatha, 

(047) 531-2150
(047) 531-2873

Vryburg Registrar of Deeds
De Kock Street, Vryburg

(053) 927-1076
(053) 927-4002