It cannot be emphasised too strongly that anyone planning to buy property in South Africa must take expert, independent legal advice.
If you aren’t prepared to do this, you shouldn’t even think about buying a property! Some people who buy a home in South Africa don’t obtain independent legal advice, and most of those who experience problems take no precautions whatsoever. Of those who do take legal advice, some do so only after having paid a deposit and signed a contract or, more commonly, after they’ve run into problems.
SURVIVAL TIP Never sign anything, or pay any money, until you’ve sought advice from a lawyer who’s experienced in South African property law.
You will find that the relatively small cost (in comparison with the cost of a home) of obtaining legal advice is excellent value, if only for the peace of mind it affords. Trying to cut corners to save a few Rand on legal costs is foolhardy in the extreme when a large sum of money is at stake.
Your lawyer will carry out the necessary searches regarding such matters as ownership, debts and rights of way. It isn’t wise to use the vendor’s lawyer, even if this would save you money, as he’s primarily concerned with protecting the interests of the vendor.
Enquiries must be made to ensure that the vendor has registered title and that there are no debts against a property. It’s also important to check that a property has the relevant building licences, conforms to local planning restrictions, and that any changes (alterations, additions or renovation) have been approved by the local authorities and have planning permission. If a property is owned by several members of a family, all owners must give their consent before it can be sold.
Before hiring a lawyer, compare the fees charged by a number of practices and obtain quotations in writing. Always check what is included in the fee and whether it is ‘full and binding’ or just an estimate (a low basic rate may be supplemented by much more expensive ‘extras’). A lawyer’s fees may be calculated as an hourly rate or as a percentage of the purchase price of a property, e.g. 1 to 2 per cent. You could employ a lawyer just to check the preliminary contract before signing it to ensure that it is correct and includes everything necessary, particularly regarding conditional clauses.
You may be able to obtain a list of lawyers who speak your language and are experienced in handling South African property sales, either in South Africa or in your home country (e.g. British buyers can obtain a list from the Law Society in the UK). Note, however, that if you use a lawyer in your home country you may have to pay extra fees, as your lawyer will almost certainly have to use the services of a lawyer in South Africa too.
Be careful who you engage, as some lawyers are part of the problem rather than the solution (overcharging is rife)! Don’t pick a lawyer at random, but engage one who has been recommended by someone you can trust.
There are professionals speaking English and other languages (particularly Dutch and German) in most areas of South Africa, and some expatriate professionals (e.g. architects, builders and surveyors) also practise there. However, don’t assume that a fellow countryman will offer you a better deal or do a better job than a South African (the contrary may be true). It’s wise to check the credentials of professionals you employ, whether South African or foreign. It’s important to deal only with a qualified and licensed estate agent. A surveyor may also be necessary, particularly if you’re buying an old property or a property with a large plot.
It’s never wise to rely solely on advice proffered by those with a financial interest in selling you a property, such as a builder or estate agent, although their advice may be excellent and totally unbiased.