When do you need a property lawyer or conveyancer?

A lawyer or attorney who deals with land or immovable property matters is a specialist and formally called a conveyancer.

Not all lawyers are conveyancers. An attorney must write additional exams and be admitted by the High Court of South Africa to practice as a conveyancer. This is because of the importance of land or property as an asset for most people.

Your home is usually the biggest and most valuable asset you will have. So it is appropriate that a specialist should deal with any aspect of your rights to land, whether it is about the ownership, use, transfer or any other aspect relating to land. This is also why all transactions or agreements relating to land must be recorded in writing, registered and stored at the relevant branch of the South African Deeds Office around the country.

Unless you are one of the range of people who deals with land or property issues a lot, like an estate agent, property developer, builder, or bond originator, property finance or loan provider for example, it is unlikely that you will deal with a conveyancer too many times in your life.

Most people only deal with conveyancers when they buy or sell their homes, but conveyancers deal with all sorts of tasks related to property as well. We thought it would be useful to highlight a few of the tasks a conveyancer can assist you with:

• Normal transfer of property when buying or selling a home, whether it be a freehold, independent house, or a sectional title unit in a development or an apartment block. In this case the seller can choose who they want to act as their conveyancer.


• Transfer of property as a result of a commercial transaction when a factory or industrial property is bought or sold, together with buying or selling a business. The same might also apply to office space, although this is usually leased from a bigger property owing company that owns the entire building or office complex.


• When a person dies one of the elements of winding up an estate is dealing with the transfer of property from the deceased estate to beneficiaries or heirs or dealing with the sale of the property and ensuring the funds are kept in the estate for distribution. There might be a transfer to a surviving spouse, to children or even to a charity. The conveyancer must endorse this transfer to confirm it is done in accordance with the deceased's last will and testament.


• When people divorce a house is one of the assets that often forms part of a settlement between the spouses. The parties might transfer their interest in the house to the other spouse but retain another asset as a form of distribution. They might sell the house and distribute the proceeds. Either way a conveyancer will be needed. This could be done by way of an endorsement based on the divorce order.


• When there is a liquidation or sequestration a property might be part of the commercial or personal assets that are sold to repay creditors.

All the examples mentioned above relate to transferring ownership. Conveyancers also do other property related tasks as noted below:

• If you lose your Deed of Title, which proves your ownership, and wish to sell or transfer your property you will need to get a new Title Deed. This is referred to as a VA copy and must be applied for by a conveyancer explaining why the original Deed has been lost and promising to return it if you ever find it. This is because you can't have two documents ascribing ownership of property to the same person. If a VA copy has been issued, the Deeds Office will impound the original Deed should it be found later on.


• The Title Deed is kept either by the owner of the property or, if they have taken out a bond, by the person or company that gave the bond, usually a bank. The original Deed is kept as security until the loan is paid off. Sometimes people pay their bond off but do not realize that they must still also cancel the bond in order to get their Title Deed from the bank. Sometimes they only find this out when they try to transfer the property, for instance when a spouse, in whose name the property was, passes away and no one can find the Title Deed despite the bond being paid up.


• Conveyancers register and cancel bonds or home loans. People often need finance to buy a home and banks need security for the loan. A bond is usually registered and cancelled at the same time as a property is transferred. Banks appoint conveyancers to register or cancel a bond, usually from their approved panel of conveyancers.


• Conveyancers perform property or Deeds Office searches to confirm details relating to a property. They can check who owns the property, its size, the purchase price and other details.


• Conveyancers issue Conveyancer's Certificates. It is a specific type of search to confirm that the building plans or activity on a property does not breach any condition contained in your Title Deed. The conveyancer must check previous Title Deeds and ensure for example that there is no limit on the extension you plan to build, or no servitude protecting a municipal pipe under your property. City Councils or municipalities usually require this before they will approve building plans.


• You might also need a Conveyancer's Certificate for a zoning issue. If you wish to run a bed and breakfast, guest house, business or a crèche you might need a Certificate to confirm that this activity does not breach any of the rules in your Deed or possibly the area around you.


• Conveyancers open sectional title registers when a developer is preparing to build an apartment block or new development.


• Conveyancers issue certificates for the transfer of a sectional title unit and its exclusive use area, if any, confirming all levies are paid up to date and the body corporate is happy for the unit to be transferred.


• Conveyancers register Notarial Deeds which is can be used to register cessions including the cession of exclusive use areas of a sectional title property, or to register a usufruct, or register a specific loan made to someone.


• Conveyancers also prepare and register Ante-Nuptial Contracts.

If you need any help with any conveyancing activities feel free to call us for independent and professional assistance.

From the team
MA Cooper Attorneys
With Energy and Experience, giving you Expression