Property transfers
Category Advice
The process by which property is transferred from one owner to another, depends on the situation surrounding the exchange and each scenario is handled slightly differently.
"Typically property transfers happen through a sale, divorce or inheritance, and it's worth noting that there are the nuances of each," says Bruce Swain, CEO of Leapfrog Property Group.
Transfer through sale
Property transfers through the sale of a property, whether a conventional or sectional title property, adhere to the terms laid out in the offer to purchase (OTP).
According to Marius van Rensburg, Partner at Schindlers Attorneys and Conveyancers, conveyancing attorneys will review the terms and suspensive conditions in the offer to purchase, and draft the transfer document based on the information in the OTP. The transfer documents must be signed by both the buyer and the seller.
Additionally, the transfer attorney will request the settlement figures from the seller's bank and obtain guarantees from the buyer's bond attorneys, together with rates and levies clearance certificates. The seller is responsible for these payments and only after settlement will the necessary clearance certificates be issued.
"Only once all the conditions above have been satisfied will the transfer be lodged at the Deeds Office. The transfer, bond and bond cancellation attorney will liaise to arrange for the simultaneous lodgement of the documents at the Deeds Office," Van Rensburg explains.
Once registration has taken place the conveyancing attorneys will ensure final payments are made, in line with the bond settlement agreement.
Transfer through divorce
The divorce order and settlement agreement determines which spouse the property is awarded to and who will be responsible for the settlement of the bond, where applicable.
"Divorce transfers are exempt from transfer duty, in terms of the Transfer Duty Act. It's important that a transfer duty exemption certificate is obtained from SARS that states the terms of this particular transfer," Van Rensburg says.
The parties involved in the transfer need to obtain independent valuations from two different estate agents to indicate the fair value of the property for the purpose of obtaining the transfer duty exemption certificate from SARS.
In the case of couples married in community of property, whilst the spouses own an undivided half share in law, they should still regulate the property ownership in a divorce settlement agreement and go through the process of transferring a half share. The transfer of the half share is exempt from transfer duty.
Swain explains that the transfer duty exemption is applicable to all marital regimes and civil unions. "However, in the event that the property is not awarded to the spouses and the couple reach an agreement regarding the allocation of the property outside the court, the property will be liable for transfer duty and payable by the spouse that acquires the property."
Transfer through inheritance
In the event of a deceased estate, the transfer of a property to the heir of a deceased person will be subject to the terms in the individual's last will and testament. If the individual did not have a valid will at the time of passing, the terms of the Intestate Successions Act will apply.
In either event, the transfer may only take place once the Liquidation and Distribution Account has been approved by the Master of the High Court and has laid open for 21 days. Furthermore, the Master of the High Court must confirm that no objections have been lodged against the intended transfer of the property.
Once the conditions outlined above have been satisfied, the transfer documents can be drawn up by the transfer attorneys and transfer duty exemption certificate may be obtained from SARS.
Lastly, the bond settlement, rates and levies clearances figures will also need to be obtained by the transfer attorneys so that the executor of the estate can make arrangements for payment or arrange for settlement otherwise stipulated.
Author: Leapfrog Property Group
