Property and conveyancing attorneys provide legal advice and services related to buying, selling, transferring, mortgaging or leasing of real estate property. They help clients navigate the many legal processes involved in these transactions. The attorney acts as a representative of the client in negotiations and the conveyancer works to give legal effect to the agreement in the property transaction.
Moving, buying or building a house is rated as one of the most stressful events and it is one of the most significant legal transactions in life. Having a lawyer on your side can help to ensure a smooth, stress-free property transaction.
A conveyancing lawyer plays a crucial role in ensuring that property transactions in South Africa are legally sound and compliant with all relevant laws and regulations, these aspects include:
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It is important to seek legal advice early to avoid potentially costly and time-consuming disputes. Here are some of the ways an attorney can assist:
Providing legal advice before a dispute escalates.
Attorneys can provide legal advice on issues related to sectional title schemes, including interpretation of the Sectional Titles Act, the Sectional Titles Schemes Management Act and the rules of the sectional title scheme.
Mediation and negotiation
Attorneys can assist in negotiating and mediating disputes between owners, trustees and the body corporate.
Drafting and reviewing contracts
Attorneys can assist with the drafting and review of contracts related to sectional title properties, including purchase and sale agreements, lease agreements and management agreements.
Compliance with laws and regulations
Attorneys can help ensure that the trustees of sectional title schemes and its owners comply with all relevant laws, regulations and rules.
Litigation
Many disputes can be resolved by referring the matter to CSOS (The Community Schemes Ombud Service) which provides an alternative dispute resolution service, but certain matters may need to be referred to court for determination. Attorneys can advise clients before referring their matter to CSOS and can represent clients in court proceedings.
Litigating in South African Property Law can be complex and challenging and requires a thorough understanding of the law as well as the procedure involved. We are here to help you find a solution to the problem. Some aspects to consider when litigating would be the following:
Ownership:
The first and foremost legal aspect to consider is ownership. It is essential to establish who owns the property and whether the ownership is legally valid. The property may be owned by an individual or a legal entity, such as a company or trust. The ownership of the property is evidenced by a title deed.
Encumbrances
The property may be subject to various encumbrances such as mortgage bonds, servitudes, usufructs or long term lease agreements. These encumbrances may affect the owner’s ability to sell or transfer the property. It is important to consider these encumbrances and how they may affect the parties’ rights and the litigation process.
Contracts
Property disputes may arise due to breaches of contracts, such as sales agreements, lease agreements, or building contracts. It is crucial to examine the terms of the contracts and establish whether there was a material breach which entitles the party to enforce his/her rights or to cancel the contract and claim damages.
Land Use
The use of land is regulated by various laws and regulations, such as zoning and town planning schemes. It is important to consider the land-use regulations and how they may affect the property in question.
These aspects may vary, depending on a number different criteria, but typically the following may apply:
Negotiating the terms of the sale
This involves negotiating the price and other terms and conditions of the sale with the buyer or seller.
Preparing the purchase and sale agreement
This is a legally binding agreement between the buyer and the seller that sets out the terms of the sale and the agreement to transfer ownership.
The property transfer
This includes conducting a title deeds search, preparing transfer documentation, and registering the transfer with the Deeds Office.
Obtaining certificates of compliance
These certificates confirm that certain aspects of the property are compliant with regulations or are free from certain defects.
Obtaining a rates clearance certificate
This certificate confirms that the property’s rates and utilities have been paid up to the date of transfer.
Arranging for transfer duty to be paid
Transfer duty is a tax that is paid to the South African Revenue Service when a property is transferred from one owner to another.
There is no legal requirement to use an attorney when buying or selling a property but only a qualified conveyancer may prepare the transfer documents for lodgement in the Deeds Office.
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