Real Estate Investor Magazine South Africa September 2016 | Page 32

LEGAL

Choosing the Right

Attorney

Negotiating a Successful Transfer

BY ADRIAN GOSLETT

W

orking with the right attorney during a
property sales transaction can make all the
difference to how long and cumbersome
the process can be.
During the property transfer and registration process,
there are usually three different conveyancers involved
– a bond attorney, bond cancellation attorney and the
transferring attorney. The bond attorney represents
the bank or financial institution that is issuing the
finance to the purchaser. Their role would be to
handle the registration of the bond in favour of the
mortgagee over the specified property, which occurs
at the same time as transfer.
In the instance where the seller of the property
currently has an outstanding bond, the bank holding
the bond would instruct a bond cancellation attorney
to attend to its termination. This occurs once
guarantees have been provided for the outstanding
bond amount on the property and all the necessary
documentation has been completed by the bank.
Although it is generally the appropriate bank that
will appoint both of these attorneys, in most cases
it is the seller who gets to appoint the transferring
attorney. The attorney who is appointed will be tasked
with handling the transfer of the property from the
seller’s name into the new buyer’s name. They will
also be responsible for co-ordinating the registration
process with the other two attorneys to ensure that
all processes register at the same time with the deeds
office. It is important that sellers choose the right
attorney to act as the transferring attorney, as they
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SEPTEMBER 2016 SA Real Estate Investor

play a vital role in protecting the seller’s interests and
ensuring the process runs smoothly.
While there are real estate companies that want
the seller to use a certain attorney, it is entirely up
to the seller as to who they decide to use. There have
been cases where agencies have forced their clients
to make use of attorneys that are situated more than
100km away from both the buyer and seller’s physical
address. As per the Estate Agents Affairs Board
code of conduct, an agent is not permitted to force
a seller to use a specific attorney firm. The other
issue is that the buyer and seller are required to sign
documentation at the attorney’s office, so it would
be unfair to appoint an attorney that is hundreds of
kilometres away from where they are staying. When
an out-of-town attorney is appointed, they then have
to appoint a local attorney for the signing of the
documentation. This logistical issue and cost can be
avoided by appointing a local attorney firm.
If everything goes as it should, the transfer process
should take between two and three months to be
finalised. The process can be delayed if there are
certain conditions of the sale that still need to be
fulfilled or if documentation and certificates are not
in order.
Selecting the right attorney is a crucial element to
the property transfer process. It is imperative that the
seller is comfortable with their choice and trusts their
attorney.

RESOURCES

REMax
www.reimag.co.za