SHOULD I OBTAIN LEGAL ADVICE PRIOR TO BUYING OR SELLING A PROPERTY?
For many of us, the privilege to own our own house, is the beginning of wealth creation and security.
When you purchase your first home, the thought of the process and what it entails, can be very daunting. Many people are ignorant about issues associated with the registration of transfer of fixed property and the risks involved in the process can be very intimidating. You are after all dealing with probably your biggest asset.
Is it therefore necessary to obtain legal advice beforehand?
The following basic rule applies: You will be bound to what you agree to contractually.
It is therefore very important that you obtain legal advice as early as possible and that you consult with your property lawyer beforehand to extensively discuss the pitfalls and processes involved – preferably even before you make an offer on a property. As soon as you have signed the offer, you will be held liable to the conditions thereof. Written agreements can only be amended in writing after the parties to the agreement have agreed to the changes and it is important to note that no written agreement can be amended unless it is done in writing and signed by all parties involved. It is very important to note that our law stipulates that all agreements dealing with fixed property, must be in writing and duly signed by all parties involved in the agreement. No verbal agreement regarding fixed property is legal and binding. It is therefore no excuse to say that you had no knowledge of what you agreed to or that you did not know what you were getting involved in. Consult your attorney before doing anything!
What must I discuss with my Attorney beforehand?
Although many conditions in the agreements involving the sale of fixed property are standard and self-explanatory, there are certain conditions that could lead to confusion and potential disputes, for example:
- – Mortgage Bond clauses;
- – The so-called “72-hour escape” clause;
- – The duty to reveal visible and invisible defects;
- – Opinions that vary on what constitutes a fixed item;
- – The validity of Building Plans;
- – Conditions registered against the title deed of the property;
- – The costs involved for the registration of the transfer of the property, as well as the costs for registration of the mortgage bond. It is important to note that both these cost items are for the Purchaser’s account;
- – Which compliance certificates are required for example for the Electrical installation, the gas installation as well as the electric fencing.
In whose name should the property be registered?
It is important to determine in whose name the property should be registered before signing the offer to purchase. Your specific Matrimonial Property dispensation will determine this, however you might also prefer to register the property in the name of your Family Trust or Company. All these options have different legal- and practical consequences. Do your homework properly in advance and consult with your accountant regarding the tax implications of your decision.
Who can appoint the transferring Attorney?
It is important to note that an Attorney who specializes in the registration of property transfers, should be appointed to handle the process. These Attorneys are called Conveyancers. Transfer of fixed property from an owner to a purchaser, is formally registered in the Deeds Office. Only once the transfer is formally registered the purchaser becomes the new owner.
Because it is the seller’s property that is being transferred, the SELLER has the right to appoint a Conveyancer of his choice to attend to the process. It is therefore of utmost importance that you choose an Attorney Firm to whom you can entrust your biggest asset and who you know will attend to the process with integrity, professionality and effectiveness.
Article by Dirk Schoeman – Senior Associate