Transferring ownership of immovable property in South Africa is a formal legal process governed primarily by the Deeds Registries Act 47 of 1937 and the Conveyancers Act 47 of 1934. It involves several professionals — most notably the conveyancer, estate agent, and sometimes bond attorneys — each performing distinct legal and administrative functions.

This article outlines the full process, what documents and costs are required, who appoints the transferring attorney, and explores the legal and ethical implications of relationships between estate agents and transferring attorneys.

1. The Process of Transferring a Property

Once a property sale agreement is signed, ownership must be formally transferred from the seller to the purchaser through the Deeds Office. This process can take between 6 to 12 weeks, depending on the complexity of the transaction and the efficiency of the Deeds Office.

Step 1: The Sale Agreement

The written sale agreement (also known as the Offer to Purchase) forms the legal basis for the transfer. It must contain:

• Full details of the seller and purchaser;
• Description of the property (as per the title deed);
• Purchase price and payment terms;
• Conditions of sale, including occupational rent (if applicable);
• Special conditions (e.g., subject to bond approval).

Step 2: Appointment of the Transferring Attorney

Once the sale agreement is concluded, the seller nominates the transferring attorney. This attorney is usually a conveyancer — a practising attorney who has passed the national conveyancing examination and is admitted by the High Court to prepare and lodge deeds of transfer.

Step 3: Preparation of Transfer Documents

The transferring attorney requests:

• The seller’s original title deed;
• The municipal clearance certificate (showing rates and taxes are paid up to date);
• A levy clearance certificate (for sectional title or homeowners’ associations);
• SARS transfer duty receipt (proof that transfer duty has been paid or exempted);
• Compliance certificates (electrical, gas, water, beetle, etc., as applicable).

The conveyancer also prepares:

• The new Deed of Transfer in favour of the purchaser;
• Supporting affidavits for both parties confirming marital status, solvency, and identity;
• The Power of Attorney to Pass Transfer signed by the seller.

Step 4: Lodgement at the Deeds Office

All documents are lodged in sequence:

1. Bond cancellation (if seller had an existing bond),
2. New bond registration (if purchaser is financing the property),
3. Deed of transfer.

The Deeds Office examines all documents for compliance with the law. If correct, registration is approved — and ownership passes on the date of registration.

2. Costs Involved in the Transfer

The costs in a property transfer are substantial and divided between several parties:

a. Transfer Duty (SARS)

This is a tax payable by the purchaser to the South African Revenue Service under the Transfer Duty Act 40 of 1949. The amount depends on the property’s purchase price and follows a sliding scale updated annually by SARS.

b. Conveyancer’s Fees

Also paid by the purchaser, these are professional fees charged for the conveyancing process. They are based on the recommended tariff issued by the Legal Practice Council (LPC), though attorneys may charge slightly more or less by agreement.

c. Deeds Office Fees

These are statutory fees prescribed under the Deeds Registries Act and are payable to the Deeds Office upon lodgement.

d. Clearance and Compliance Costs

• Municipal rates clearance (seller’s responsibility);
• Levy clearance (seller, if applicable);
• Compliance certificates (seller);
• Bond registration costs (purchaser).

In summary:

• Purchaser pays: Transfer duty, conveyancing fees, and Deeds Office fees.
• Seller pays: Rates, levies, and compliance certificates.

3. Who Chooses and Pays the Transferring Attorney?

By long-standing legal convention, the seller chooses the transferring attorney, while the purchaser pays the conveyancing costs.

The rationale is that the seller is divesting ownership of the property and must ensure that transfer is properly effected. The transferring attorney therefore acts primarily on behalf of the seller, although they have a duty to protect both parties’ interests and ensure compliance with the law.

The conveyancer owes a fiduciary duty to the Deeds Office and to both parties to ensure that no fraudulent or defective documentation is lodged.

4. May an Estate Agent Insist on Choosing the Transferring Attorney?

In short — no, an estate agent cannot legally insist that the transferring attorney be their preferred choice.

While agents may recommend a conveyancer based on past experience, the final decision rests with the seller.
Any clause in the sale agreement giving an agent the right to appoint or insist on a specific conveyancer would be unenforceable and contrary to conveyancing practice.

This principle stems from the ethical requirement that attorneys remain independent and free from external influence. The Estate Agency Affairs Act 112 of 1976 and the Code of Conduct for Estate Agents also caution against any arrangements that may compromise a client’s freedom of choice or create a conflict of interest.

5. Legal and Ethical Implications of Attorneys and Estate Agents Working Together

a. Prohibition on Referral Incentives

The Legal Practice Act 28 of 2014 and the Rules of the Legal Practice Council strictly prohibit attorneys from offering or paying any form of commission, referral fee, or incentive to estate agents (or any third party) in exchange for conveyancing referrals.

Such conduct amounts to unprofessional and unethical behaviour, as it compromises the attorney’s independence and creates a potential conflict between the attorney’s duty to the client and their financial relationship with the agent.

b. Estate Agent’s Conduct

An estate agent who accepts such incentives may be found to have acted unethically under the Property Practitioners Act 22 of 2019, which replaced the Estate Agency Affairs Act.
Section 62 of the Act provides that no property practitioner may receive any reward or consideration other than that agreed upon in writing with their client. Accepting undisclosed incentives from attorneys could result in disciplinary proceedings and the suspension or cancellation of their fidelity fund certificate.

c. Attorney’s Consequences

If a conveyancer is found guilty of giving inducements or sharing fees with estate agents, they may face:

• Disciplinary action by the Legal Practice Council;
• Suspension or striking off the roll for unprofessional conduct;
• Criminal charges if the conduct amounts to fraud or contravenes financial regulations.

d. Reputational and Transactional Risks

Such arrangements can invalidate a client’s informed consent, cause disputes, and expose all parties to civil liability if the transaction is later challenged on grounds of misrepresentation or conflict of interest.

6. Conclusion

The transfer of property in South Africa is a tightly regulated process designed to ensure legal certainty and public confidence in land ownership.

While estate agents and conveyancers often work alongside each other to facilitate property sales, their roles are distinct and must remain ethically independent.
Only the seller may appoint the transferring attorney, and no form of incentive or referral arrangement is permitted between attorneys and agents.

Maintaining transparency and ethical practice protects all parties involved — and upholds the integrity of South Africa’s property registration system.

Henk Scheepers Inc. provides professional conveyancing services across South Africa. Our attorneys are registered conveyancers committed to ethical excellence, efficiency, and client transparency in every transfer.