You have just accepted an Offer to Purchase and your estate agent asks who your conveyance; the person you wish to appoint to attend to the transfer of your property to the buyer.
Unless you have previous experience of buying or selling immovable property, you may wonder who or what a conveyancer is.
Conveyancers are qualified attorneys who have passed an additional examination which entitles them to deal with the preparation and registration of deeds and documents that are registerable in a Deeds Office.
A person may not be enrolled to practise as a conveyancer unless he or she has been admitted to practise as an attorney. A copy of the Court Order admitting a conveyancer is served on the Registrar of Deeds within whose jurisdiction the conveyancer practises after he or she has been admitted by the High Court of South Africa. The Registrar of Deeds maintains a register of admitted conveyancers.
The Deeds Registries Act provides that certain documents may only be prepared by a conveyancer who will sign a "preparation certificate" on the relevant document.
Conveyancer assumes responsibility
The effect of signing such certificate is that the conveyancer assumes responsibility for the correctness of the information contained in that document, including:
- Being responsible for having established that persons acting on behalf of companies, close corporations or trusts have been authorised to act on behalf of such organisations; and
- Such organisations do in fact have the capacity to enter into the specific transaction.
With immovable property forming such an important component of the South African economy, conveyancers are ideally placed to provide expert advice on all matters relating to the transfers of:
- Residential, commercial and industrial properties, sectional titles, group housing;
- Golf estates;
- Notarial and sectional mortgage bonds; and
Clearly, therefore, a conveyancer must be familiar with a vast array of property-related legislation in order to provide clients with accurate and valuable advice.
A conveyancer's day is spent preparing and checking documents, consulting and advising clients, managing the registration process of transactions and dealing with finances. This includes obtaining rates clearance certificates from local authorities and transfer duty receipts or exemption certificates from the South African Revenue Service.
Attention to detail of paramount importance
The conveyancer attending to the transfer of a property is also responsible for liaising with the linked conveyancers attending to the cancellation of the seller's mortgage bond and registration of the buyer's bond and arranging for the batch of deeds to be lodged simultaneously for examination at the Deeds Office.
The nature of a conveyancers work is such that accuracy and attention to detail is of paramount importance. The smallest of errors, such as a typing error in a person's identity number, can lead to delays which inevitably cause loss to some or all of the parties to a transaction. A competent conveyancer will thus verify all information required for purposes of the transaction and check all documentation carefully.
Most conveyancers based at the location of the ten Deeds Offices throughout South Africa also visit their respective Deeds Offices each morning to register those transactions which have passed the examination process and are in order for registration.
A conveyancer from each firm of attorneys attends the registration room at the Deeds Office and liaises with conveyancers with whom he/she is linked in a particular transaction.
A straightforward sale
Consider, for example, a straightforward sale and transfer of a house where the seller has a mortgage bond which must be cancelled and the buyer is registering a mortgage bond to secure the loan granted to him/her by his/her bank. In this case, the conveyancer attending to the transfer of the house will collect the signed deeds from the cancellation bond conveyancer and hand the batch to the bond conveyancer who will then hand over the signed deeds to the Registrar of Deeds.
As soon as the relevant deeds have been signed by the Registrar of Deeds, the seller?s bond is cancelled and ownership of the immovable property passes to the buyer, whose mortgage bond is registered in favour of his bank. Once this has taken place it can only be undone by an Order of The High Court.
The transferring conveyancer then deals with the finances of the transaction. Thus, he/she pays the estate agent, the beetle and electrical inspectors and accounts to the seller for the net proceeds of the sale. If any funds have been invested for the buyer, the conveyancer will account to him/her for interest accrued on such funds.
While members of the public may consider a conveyancer's work to be largely routine, every transaction is different and, with regular amendments to legislation affecting immovable property, a conveyancer?s working day is mostly varied, interesting and challenging.