By Sanette Viljoen
The standard deed of sale of fixed property contains a clause that stipulates which attorney is going to handle the transfer of the property. Is it obligatory that this attorney be used as the transferring attorney and is it his responsibility to carry into effect all the provisions in the deed of transfer, e.g. with regard to occupational rent, interest levies, etc.?
The general ethical rule of the Law Society is that the seller may appoint the transferring attorney. It is also within the seller’s discretion to terminate the attorney’s mandate and to appoint another attorney. The seller and the buyer may also jointly decide who they are going to appoint as transferring attorney. The seller may also give the buyer the right to appoint an attorney. It is, however, the seller’s right to decide who will handle the transfer.
The general principle is that it is the transferring attorney’s duty to see to it that all the provisions that have to be carried out in terms of the contract are carried out before registration of the transfer. This must be done before transfer is registered in the deeds office. Most important, however, is to make sure that the purchase price is paid.
The transferring attorney therefore has specific duties, the first of which is to make sure that the purchase price is paid. If the purchase price is payable on registration, the transferring attorney must make sure that funds will be available for payment of the full purchase price on the date of registration of transport.
Normally the transferring attorney will also assist in collecting occupational rent from the er, except where the contract stipulates that the buyer must pay the seller directly. If interest on the purchase price is payable before the registration date, the transferring attorney must also make sure that it is collected or paid before the transfer is registered.
The transferring attorney must therefore also make sure that the buyer has met all his obligations before the property is transferred to the buyer. On the other hand the transferring attorney must also make sure that the seller’s obligations have been met. The seller must, for instance, be able to provide an electrical for the property. The property should therefore not be transferred before the seller’s obligations have been met.
Other aspects that should be finalised before registration, is the settlement of any bond debt in respect of the property, the cancellation of any bond registered over the property, the payment of municipal clearance fees, the obtaining of a clearance certificate, the collection and payment of transfer duty and VAT, and the payment of levies in the case of sectional title units. It is therefore a fairly extensive process and the transferring attorney has a lot of responsibilities.