Conveyancing

 

Question - Why would you ask André Kachelhoffer to advise you and assist you when you have a home or a farm or a business premises to sell or to buy?

Answer - This is, in the case of most people the biggest financial transaction they they will ever get involved in during their lifetime. You must have somebody in your corner.  I have extensive and specialised experience in virtually all aspects of conveyancing, since 1991 as an admitted and practicing conveyancer. If you are selling, then it is your prerogtive to appoint the conveyancer. The buyer must pay the transfer cost. If you are buying, then you may negotiate to appoint the conveyancer, but you may not insist. You are as purchaser liable to pay the transfer cost, even if it is not a conveyancer appointed by you. It is a conveyancer's duty to act in the best interest of both the owner (his client) and the buyer. If it is not obvious what the correct thing would be to do for him or her then the conveyancer must abide by the instructions of the owner being his or her client. There is no reason why a buyer may not appoint an attorney to "watch over" the transaction on the buyer's behalf. I do not know why this is not common practise. There is a large amount of money involved.

Question - What does it cost?

Answer 1 -  The Offer to Purchase or Deed of Sale Agreement. If you are not happy with the agreement which the estate agent or the owner or the buyer is presenting to you to sign, then ask me to do it. If I am appointed as the conveyancer, then it will not cost you anything. If not, then the document will cost you R1 200 and you will have a legal document specific to your property and to your needs, and not a document with "delete that which is not applicable"s. Do not fall for the "this must be signed before 17h00 today!". I say again - This is probably the biggest financial transaction that you will ever get involved in. Do not rush it.

Answer 2 -

The transfer of a property from an owner to a buyer will attract a conveyancing fee and a Registrar of Deeds fee. If you appoint me with a "watching brief" then we will negotiate and agree on a fee, approximately 15% of the Conveyancing fee. 

Answer 3 -

The transfer of a property from an owner to a buyer may also attract Transfer Duty payable to SARS the amount dependent on either the market value of the property or the selling price, whichever is the highest. Transfer Duty must be paid within 6 months of date of the transaction, otherwise it attracts interest. 

Answer 4 - 

The transfer of a property from an owner to a buyer may attract Value Added Tax (VAT) if the property forms part of the VAT enterprise, in stead of Transfer Duty if the seller is registered for VAT. There can be circumstances when both the owner and purchaser are registered vendors for purposes of VAT in which case the transaction will be zero rated and Transfer Duty will not apply.

Answer 5  -  

The payments of Transfer Duty and VAT also apply to the sale of shares in a private company owning fixed property if the property forms part of the VAT enterprise of the company.

Question - What are the important clauses in a Deed of Sale Agreement that an owner and a buyer must look out for and fully understand?

Answer 1 - The "Voetstoots" clause may be a problem. 

• It means "as is” or “with all faults.” It allows an owner to transfer property in its existing condition, relieving the owner of liability for defects protecting the owner against claims for both patent (visible) and latent (hidden) defects, with the risk passing to the buyer.
   
• Most properties that are sold have been occupied and therefore typically contain defects arising from use, normal wear and tear, or even negligent construction. The voetstoots clause remains valid in many transactions, but its application is significantly limited by the Consumer Protection Act of 2008. Owners must in view of the aforesaid, disclose all known defects, even those that may seem minor, to avoid disputes. If the voetstoots clause is included in the Deed of Sale Agreement and the owner has acted in good faith, then the owner will be protected from liability for undisclosed latent defects. Buyers must thoroughly inspect the property or hire somebody to identify defects. If an owner concealed a defect, then a buyers could take legal action to cancel the sale or claim damages suffered, even if a voetstoots clause is present. 

Answer 2 - Conditional clauses. 

 

A necessary evil is the "subject to finance" clause. It is unavoidable when a financial institution is going to finance the transaction, but understand that the Sale and Purchase Agreement  only becomes final when the financial institution approves the transaction. It is an "Option to Buy" before the finance is approved to become a "Sale and Purchase Agreement" when it is approved. What you must do when you sell subject to finance is to make sure that the conditional period is not too long, and that the person to whom you have granted this "option" is not a man or woman of straw. 

"Subject to something else" must be avoided because it has the same consequence namely it is then an option to buy and not a sale and purchase transaction. Having said that it may be that you as purchaser want exactly that, an option. For example - I buy subject to the owner fixing the stove in 14 days. If the owner fails to fix the stove in 14 days, then there is no agreement. (This can be abused by the owner if he wants to get out of the deal - he fails to fix the stove on purpose and the buyer has no recourse). As opposed to I buy and the owner must fix the stove. If the owner fails to fix the stove, then the sale and purchase agreement is enforceable, but the buyer may act against the owner for breach of the Sale and Purchase Agreement. 

 

 

 

Answer 3 - Building plans.

 

Parties may agree to not contract on the availability of building plans or guarantee that the structures are in according with the building plans. If however there is such a clause, then make sure that there are approved building plans available and that there are no "illegal" structures (structures not on the building plans). The financial institution financing the transaction may insist on building plans whether or not the Sale and Purchase Agreement has such a clause.

 

P.s - All clauses in a Sale and Purchase Agreement are important and have legal consequences. They reflect the intentions of the parties. This means that any verbal agreement which contradict the Sale and Purchase Agreement, is not enforceable.

For any further information -  

• Phone me or whats app me at 27 83 687 2609, or 
• e mail me at kach@mweb.co.za, or 
• contact me on my website, or 
• leave a comment on my blog.
• leave a comment below on this page.

 

Protection of Personal Information Act 4 of 2013 ("Poppy").

The personal data provided to me will be used only for the purposes of replying or advising or for purposes of executing an instruction. I will in addition to Popy compliance, store all details as provided for and specified by the Legal Practice Council from time to time. The Legal Practice Council is the statutory body that regulates all legal practitioners in South Africa, ensuring professional conduct, admission standards and public accountability. 

I have the privilege of confidentiality under the law pertaining to my clients.