• Fica Letters
• Fica Questionnaire Close Corporation
• Questionnaire Foreign Company
• Fica Questionnaire Foreign National
• Fica Questionnaire Individual
• Fica Questionnaire Minor
• Fica Questionnaire Private Company
• Questionnaire Trust

Stage 1

• – Buyer and Seller sign agreement

Satge 2

• – Seller to advise bank of intention to cancel bond to avoid 90 day cancellation penalty.
• – Bond approved.
• – Fulfillment of other suspensive conditions.
• – Deposit paid.
• – Transferring, bond and cancellation attorneys instructed.
• – Parties to provide FICA documentation.
• – Transfer attorney requests title deeds and cancellation figures from the bank, and prepares transfer documents for signature by parties.
• – Bond attorney advises transfer attorney of amount available for guarantees.

Stage 3

• – Purchaser pays transfer costs.
• – Rates clearance and valuation certificates applied for (seller pays rates and utilities to transferring attorney).
• – Transfer attorney receives title deed and cancellation figures from cancellation attorneys and sends draft deed to bond attorney.
• – Bond documents prepared once draft deed received.
• – Cancellation attorney is requested to cancel seller’s bond on receipt of guarantees from the new bond attorney.
• – Purchaser signs bond documents and pays bond registration costs.
• – Purchaser signs transfer documents.
• – Seller signs transfer documents.
• – Electrical and beetle certificates arranged (and plumbing, where appropriate.

Stage 4

• – Transfer attorney pays rates/levies and transfer duty to SARS (electronically).
• – Bond attorneys send guarantees to the transfer or cancellation attorneys.
• – Transfer attorney obtains consent from the bondholder to cancel the seller’s bond.

Stage 5

• – Documents prepared for lodgement at Deeds Office Stage 5.
• – Documents lodged at Deeds Office.
• – Documents are checked in the Deeds Office (+10 days, regulation: 7 days).
• – Purchaser must have balance of purchase price available and pay it to transfer attorney before lodgement, or when called for in terms of the agreement.

On registration

• – Financial institution’s attorneys have bond amount available.
• – Property registered in purchaser’s name Seller’s bond cancelled Purchaser’s bond registered.

Transfer costs

• – Transfer duty – calculated on a sliding scale between 0% to 8% of the gross purchase price, is payable to SARS (R0 to R600 000 is exempt).
• – If the seller is a VAT vendor, then VAT is payable at 14% of the purchase price. As the seller is liable for payment, it is important to add the VAT to the purchase price, and to state clearly whether the agreed purchase price includes or excludes VAT If nothing is stated, it is deemed to be inclusive of VAT, and the seller will be liable for VAT at the “tax fraction” (which comes to 12 28% of the gross price).
• – The transaction may be zero-rated only when an income generating entity, which is also a going concern, is sold from a VAT vendor to a VAT vendor.
• – A divorced spouse may acquire sole ownership in the whole or any portion of property registered in the name of his or her divorced spouse. Such transfer shall be exempt from transfer duty where that property or portion is transferred to that divorced spouse as a result of the dissolution of their marriage.
• – Conveyancing fees – of the transferring attorney, may vary slightly according to rates set by the conveyancer who attends to the transfer, but are based on recommended fee guidelines from the law society (plus VAT).
• – Bond registration costs – the purchaser normally pays the transfer and bond registration costs (plus VAT).
• – Deeds office/registration fees – a fee which varies between R30 and R4 000, dependent on purchase price /value of property.
• – FICA costs – usually between R300 and R750 (plus VAT) per FICA investigation.
• – Sundry charges – posts and petties and telephone calls payable to the transferring attorney (usually about R500 plus VAT), and valuation certificates – a disbursement to the local authority to obtain a valuation certificate – which varies depending on the local authority (e g Cape Town is R275).
• – Occupational rental/pro rata rates and taxes – occupational rental payable as per agreement and usually prior to and adjusted on registration of transfer Rates and taxes and utilities (levied by the local authority) are paid by the seller in advance for 120 days, who may then claim a refund from council for any amount overpaid, covering the period after registration of transfer.

TYPICAL COST OF SELLING

• – Estate agent’s commission – Commission rates are calculated as a % of the gross purchase price and should be negtiated upfront with the agent. Sellers need to establish very clearly what commission an agent proposes to charge before awarding a mandate and to ensure that the % agreed upon after any negotiation is written into the mandate document (where applicable) and establish whether such % includes VAT.
• – Beetle inspection, electrical inspection, plumbing and gas certificates – usually between R350 and R500 (plus VAT) The Seller will be responsible for any repairs required before such a clearance certificate can be issued. The beetle inspection certificate may be required by inclusion in the contract of sale The electrical inspection certificate is required to be obtained by the seller in terms of legislation (Occupational Health and Safety Act no 85 of 1993).
• – Bond cancellation fees – to cancel an existing bond.
• – Rates and taxes – the seller is normally liable to pay rates up to the date of transfer. This may involve paying a 120 days rates in advance, payable before registration of transfer (can vary from agreement to agreement).
• – Electrical System fence certificate – see page 10 Usually this will be provided for in sale agreements concluded after 1 October 2012, which in most cases, will require the seller to bear the cost of ensuring compliance with specifications, together with the cost of obtaining the compliance certificate.

Description of the property and parties
The property and parties must be properly defined, so as to be capable of identification from very wording used in the agreement.

Unfair contract terms prohibited in terms of the Consumer Protection Act 68 of 2008
In terms of the Consumer Protection Act (CPA), unfair contract terms are to be prohibited in deeds of sale to which the Act applies. Note that it is still ambiguous as to whether the CPA applies at all to residential property sales, as a seller in these “once off” private sales, may not be deemed to be a supplier selling goods in his/her ordinary course of business, as defined in the Act Where the CPA does apply, each case will be determined on its merits as to what is deemed to be fair or unfair contract terms.

Purchase price & payment

• *The price offered must be clearly stated, written both numerically and alphabetically.
• *Sellers normally do and should require the payment of a deposit, which shows good faith, and the financial ability on the part of the purchaser and also provides security for the seller to cover its losses should the purchaser breach the agreement. However, see page 15 relating to Sections 48–52 of the CPA which deals with unfair contract terms. The effect of these provisions could mean that where the CPA applies, a clause to the effect that a purchaser forfeits his/her deposit if the sale is cancelled for any reason, or a variety of clauses that are outside the control of the purchaser, may be deemed to be void, which may result in the entire contract being void, unless the sale is cancelled as a result of a breach by the purchaser. As a purchaser, it is advisable to protect yourself by stipulating that the deposit is to be held in trust in an interest-bearing account, for your benefit pending transfer (this protects you as purchaser should the seller go insolvent).
• *The balance of the purchase price is normally secured by a bank guarantee, usually coupled with a mortgage bond to be registered over the property. The seller’s conveyancer must make sure that guarantees are provided timeously, and the purchaser must ensure that the contract provides sufficient time to arrange finance and provide guarantees.

Occupational interest
Where occupation takes place on a particular date and transfer takes place after the date of occupation, occupational interest is paid at an agreed amount for the period of occupation until transfer. In most cases this is paid by the purchaser, who may take occupation prior to transfer being registered. The terms should be stipulated in the deed of sale. In some cases, it is the seller who is the one who has to stay on in the property he or she has sold and where transfer has been registered. In this case, the seller will be required to pay occupational interest to the purchaser. In general, on occupation, risk passes to the purchaser. Clauses dealing with occupational interest and risk (who is at risk while the purchaser is in occupation) should be included in the deed of sale.

Electric fence regulations
Regulation 12 of the “Electrical Machinery Regulations” require that you have an “electric fence system certificate of compliance” if you install, add to, or alter an electric fence after 1 October 2012, or where there is a change of ownership of the premises on which the system exists, if the change of ownership takes place after 1 October 2012.

This affects the buying and selling of property. The Regulations do not specify that a certificate is required in order for property to be transferred However, a purchaser may find that he/she is required to obtain a certificate in order to comply with the Regulations. Sale agreements concluded after 1 October 2012 should make provision for the electrical fence system certificate, and set out clearly which party is liable for the provision of the certificate, and who shall bear the cost of doing so. This would in most cases be the seller, who would be required to provide the certificate prior to transfer taking place, (similar to the beetle, plumbing and electrical certificates required to be supplied by the seller). The certificate is transferable Once it has been issued, there is no need to obtain a new one upon a change of ownership.

The “Financial Intelligence Centre Act no 38 of 2001” (FICA) clause
Cash transactions and FICA:
Accountable institutions (AI’s), which include attorneys, are required to file a report with the Financial Intelligence Centre in regard to any cash transactions involving domestic and foreign notes and coins, and travellers cheques above R25 000.

The transferring attorney is required to request certain documents from both the seller and the purchaser, in compliance with FICA.

If applicable, the bank granting the bond may require the same documents as listed below. The documents required are as follows:

1. Trust

• *Verification of all authorised Trustees and Beneficiaries (income tax, identity numbers and residential addresses).
• *Letters of authority to act as Trustees.
• *Copy of the Trust Deed.
• *Resolution authorising Trustee to act on the Trust’s behalf in the property transaction.
• *Income tax number of the Trust.
• *VAT number of the trust (where applicable).
• *For bond registrations, financial institution may require financial statements and/or personal suretyship from the Trustees.

2. Company/Close Corporation

• *Verification of all Directors and shareholders/members (income tax, identity numbers and residential addresses).
• *Memorandum of Incorporation/Founding Statement (and amended where applicable).
• *CoR 39 Certificate (Certificate of Director amendments).
• *Resolution authorising Director/Member to act on entity’s behalf in the property transaction.
• *Income tax and VAT number of the company/CC (where applicable).
• *For bond registrations, financial institution may require financial statements and/or personal suretyship from the shareholders/members.

3. Natural Person

• *Identity document(s)
• *Income tax registration number (latest tax return submitted to SARS and VAT number – where applicable).
• *Proof: marital status:marriage certificate, antenuptial contract, divorce orders.
• *Consent papers (where applicable).
• *Either a utility bill (water or lights), or a levy account that is addressed to you at your residential address.

4. Estate agent

• *VAT details, income tax details of agency and agent involved in the transaction.

These lists are not exhaustive and are intended to give an idea of the required documentation for FICA compliance.