Understanding Property Transfer Fees and Attorney Appointments in South Africa

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When buying a property in South Africa, one of the many costs to consider is the transfer fee. Traditionally, the buyer pays these fees, but they often find themselves at a disadvantage when it comes to selecting the transferring attorneys. This article delves into the reasons behind this practice and how buyers can navigate the system.

The Role of the Transferring Attorney

In a property sale, the transferring attorney plays a crucial role. Their job is to ensure that the ownership of the property is legally transferred from the seller to the buyer. While buyers pay for these services, they often do not have a say in who performs them.

Why Do Buyers Pay but Sellers Choose?

The legal tradition in South Africa holds that the seller nominates the transferring attorney. This is based on an old legal case from 1903, which established that sellers have the most to lose in a property sale. If something goes wrong, it’s the seller who faces the risk. Therefore, the law grants them the right to choose the attorney who will handle the transaction.

This practice also extends to banks. When buyers take out a mortgage, the bank appoints its own attorney to manage the mortgage registration. Again, the buyer is responsible for paying that attorney’s fees.

Negotiating for Change

While the default practice is for the seller to choose, buyers can negotiate. It is possible to make the right to appoint a transferring attorney part of the offer to purchase. This means buyers can state up front that they wish to select their own attorney.

When making an offer, buyers should feel empowered to include this term. By clearly stating the preference for a specific attorney, buyers can protect their interests.

Just Your Rights

It’s important to understand that while the common practice allows sellers to appoint the transferring attorney, this is not a law set in stone. Buyers can take control by proposing specific attorneys and getting quotes in advance. This proactive approach can lead to a smoother and more tailored transaction.

Engaging in discussion with the seller about your choice can make this process easier. If both parties agree, the sales agreement can then be amended to include the preferred attorney.

Final Thoughts

Property transactions can be complex, with many layers of legal and financial considerations. By understanding the role of transferring attorneys and knowing that buyers can negotiate for their choice, individuals can take an active role in their property purchases.

Buyers should educate themselves on their rights. Choosing the right transferring attorney can make a significant difference in ensuring a successful property transfer. Always remember that a house is not just a physical space; it’s one of the largest financial investments most people make in their lifetime. Know your rights and take control of your property buying journey.