LEGAL AND CONTRACTUAL FAQ



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1. When is transfer duty payable?
2. On what date should occupation be given and what is occupational rental?
3. What if a tenant has a lease that overlaps the transfer date?
4. Is the Purchaser ever liable for commission?

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When is transfer duty payable?
This sum is payable to the Receiver of Revenue, but is usually collected by the conveyancer. Transfer duty is actually only required to be paid within a period of six months from the date of the transaction to avoid penalties. In practice, the conveyancer calls on the Purchaser to pay the duty soon after receiving conveyancing instructions from the agent and will not proceed with the transaction until these and other costs are paid in full

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On what date should occupation be given and what is occupational rental?
Occupation should be agreed on a date mutually suited to both parties. It will often occur, however, that one of the parties is in occupation of the property while it is registered in the other's name, thus requiring the occupier (who may be either a buyer or seller) to pay a rental to the owner.

This could typically happen where registration takes place in the middle of the month and both parties only want to move at month end. The seller would then remain in the property until month end and pay the payer occupational rent for half the month.

Entitlement to such rent is not automatic and should be specified in the Agreement of Sale. The rental amount is usually agreed at a level commensurate with rentals available in the market.

Your agent will discuss this with you on filling out the offer to purchase so that occupation and registration dates suit both parties in the best manner possible

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What if a tenant has a lease that overlaps the transfer date?
Upon taking occupation of the property, the tenant acquires a real right thereto for the duration of the lease and will be protected by the "huur gaat voor koop" principle. The new landlord takes over the role of his predecessor, who in turn is relieved of obligations towards the tenant.

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Is the Purchaser ever liable for commission?
Strictly speaking, commission is payable by the party who conferred upon the Estate Agent the mandate to act on his/her behalf - that being the seller. In reality, however, it seldom happens that South African buyers pay commission (unless the Purchaser defaults on the sale).
 
Even if the buyer has appointed an agent to procure a home on their behalf, the seller and buyer agent will split the commission – being paid by the seller

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