Transfer attorneys and more: who's who in the property sale process

If you are buying a property for the first time – or even if you have done this before – you may not have a clear understanding of how transfer attorneys and other legal professionals play a role in the process that happens between signing on the dotted line and receiving the keys to your new home. The Lew Geffen Sotheby’s International Realty team chatted to Lauren Smith, Key Account Manager at STBB Attorneys, to get the lowdown.

Understanding the property sale process as it relates to attorneys

Smith explains that all property transfers, irrespective of the property’s value, must be attended to by a conveyancer. “A conveyancer is an attorney with specialised property knowledge,” she shares “To become a conveyancer in addition to being an attorney, you must pass additional examinations set by the Legal Practice Council of South Africa and must be formally admitted by the High Court of South Africa. It is important to note that not all attorneys are conveyancers – although conveyancers are often colloquially referred to as attorneys.” 

There may be up to three different sets of conveyancers involved in any property transfer. This includes the transferring attorney, who has been instructed by the seller to transfer the property into the purchaser’s name, the bond cancellation attorney and the bond registration attorney.

The role of an attorney in closing the sale

The first task that a transferring attorney must undertake is ascertaining that the property is transferable. “They do this by checking the records of the relevant Deeds Registry,” elaborates Smith. “If there are any interdicts or caveats registered against the property, these will need to be addressed. The transferring attorney will also coordinate with the other conveyancers involved in the transaction and prepare the relevant documentation for the seller and purchaser to sign.”

 At this stage, the transferring attorney will advise the seller’s mortgage bank of the intended transfer of the property. “The bank will then appoint an attorney to attend to the bond cancellation. This attorney will obtain settlement figures from the bank and advise the transferring attorney accordingly. “The transferring attorney must procure a guarantee in favour of the bank for settlement of the outstanding amount,” explains Smith. “On the strength of that, the bank will sign a ‘Consent to Cancellation’.”

 If the buyer has applied for mortgage finance, a third conveyancer becomes involved in the process: the bond registration attorney. This attorney will be instructed by the relevant bank to register a mortgage bond over the property being purchased. “Once instructed, the bond registration attorney will contact the transferring attorney to advise that they have ‘x’ amount available to pay over to the transferring attorney upon registration of transfer of the property,” shares Smith.

Does the seller choose the transfer attorney?

Under South African law, it is the seller’s prerogative to nominate and instruct the transferring attorney to attend to the transfer of ownership. However, it is the purchaser who pays for the costs of acquisition, including the conveyancer’s fees. Regarding these fees, Smith elaborates that the fee structure is largely dictated by the fee guidelines issued by the Law Society of South Africa. “These fees are determined on a sliding scale,” she explains to Lew Geffen Sotheby’s International Realty.

 When it comes to the registration of the purchaser’s new mortgage bond, most of the banks will automatically allocate the task to a conveyancer on their panel of attorneys. “In some instances, however, the bank will allow the purchaser to request a specific attorney,” Smith says. “The purchaser will pay the costs associated with the registration of the bond, as well as bank initiation fees and similar charges. These fees are also regulated by a guideline issued by the Law Society of South Africa.” 

In cases where the seller has an existing mortgage bond to cancel, most banks will once again automatically allocate this task to an attorney on their panel. This is a cost for the seller’s account and, just like the aforementioned charges, these fees are regulated.

How to choose a conveyancer

While the purchaser finances the transaction costs, the seller retains the right to nominate a conveyancer. This is to ensure that the process is driven by the party who has the least interest in delaying a transfer – a delay can cause significant anxiety for a seller who may have bought another property elsewhere.

When appointing a conveyancer, a seller should ensure that the conveyancer is reputable, from an established firm with a solid track record and has adequate experience.

 The process of buying and selling property can seem like a daunting challenge, especially if you are doing it for the first time. However, Lew Geffen Sotheby’s International Realty and their team of experts are here to guide you every step of the way. Get in touch for more information about any part of the journey to owning a new home.