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How to sell a home – You can choose your own attorney

Selling your home is as exciting as it is stressful. Do you appoint an estate agent or try going solo? Whose offer do you accept if you get multiple offers to purchase? What regulations do you have to comply with before your home can be transferred?

Our friends at MC van der Berg Attorneys have kindly allowed us to republish their MC Sellers Guide to help educate new and seasoned sellers on the legal ins and outs of home selling.

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2 Choosing your attorney

Your risk, your right, your choicechoosing the right team

The process of selling and eventually transferring your valued property can have many pitfalls if you do not receive the correct advice timeously. It is therefore advisable to use transferring attorneys who can guide you and who you can trust to look after your interests.

Since you are the seller you have the right to nominate the conveyancer dealing with the transfer of your investment. We suggest that you do so cautiously and with serious regard for your own interests.

You should appoint an established law firm that specialises in property law and has the capability to manage and expedite the transfer process while giving you frequent and relevant feedback.

MC van der Berg Incorporated will gladly assist you with the transfer of your property if you decide to appoint us.

The swift and effective transfer of your property remains the most important aspect of our mandate. Together with this we undertake to proactively provide you with information. All of our requests will be clear and unambiguous. Your emails and telephone calls will be answered within 24 hours. You will have access to our conveyancers. You will be assisted in Afrikaans or English, according to your preference. Settlement and payment will occur within 48 hours after registration at the latest (generally settlement will be within 24 hours, but bank systems may delay payments).

We endeavour to register your transaction promptly and in a hassle-free manner while providing continuous, relevant and contextualised feedback, which we believe is the backbone of good customer relations and service excellence.

What the transferring attorney does

The transferring attorney is the law firm responsible for the transfer of your property into the name of the purchaser.

This law firm must ensure that the purchaser complies with the terms of the deed of sale and, if not, that the necessary steps are taken to enforce the terms. This law firm also drafts all the legal documents and oversees the signing thereof. Furthermore it is its responsibility to obtain the transfer duty receipt and city council (and HOA and sectional title, if applicable) clearance certificates. All figures are dealt with by the transferring attorney and this attorney is responsible for all the financial aspects of the transaction. This firm must coordinate lodgement of the documents at the deeds office once it is satisfied that all legal and contractual requirements have been met.

Ultimately, this is the law firm that must primarily look after your interests and protect you through the transfer process.

Before accepting the OTP

The offer to purchase, which is made to you by the purchaser, becomes the deed of sale once you have accepted it in writing. The deed of sale and legislation create the rules applicable to the transferring attorney when your property is transferred.

It is imperative that you take note of certain key aspects listed here before accepting the offer to purchase. It is also of the utmost importance that you scrutinise the offer before you accept it. Rather be safe than sorry.

MC van der Berg offers sellers a free consultation to discuss the offer to purchase, should you decide to instruct them to attend to the transfer.

Rules of the game: The deed of saletxking / Shutterstock.com

The deed of sale is the instruction and mandate given by the parties to the transferring attorney and we cannot deviate from it. Apart from scrutinising the offer before you accept it there are two aspects that we would like to draw to your attention.

Pro forma offers to purchase introduced to you by various estate agents will in most cases contain a clause that stipulates that the deed of sale will constitute the complete and only agreement between the seller and purchaser.

You should therefore not accept or give any verbal undertakings as these will be unenforceable. To indemnify yourself against possible claims resulting from averred oral undertakings or guarantees, it is important to ensure that the deed of sale does indeed contain such a clause.

Pro forma offers to purchase introduced to you by various estate agents will in most cases also contain a clause that stipulates that amendments and variations to the deed of sale must be in writing and signed by both parties before it is valid.

No verbal amendments or variations to the deed of sale will therefore be enforceable. Should you wish to amend certain clauses in the deed of sale, we will gladly attend to the necessary addendum.

Next time: Understanding the various suspensive conditions; caution with your next purchase; and understanding fittings and fixtures

¶ Contact MC van der Berg Attorneys on +27 (0)12 660 6000, email info@mcvdberg.co.za or visit their website



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