Aliens (non- residents) There are very few restrictions on property ownership by non-residents but there are procedures and requirements which must be complied with in certain circumstances. In terms of the Aliens Control Act 96 of 1991 a non South African citizen who is in the Republic of South Africa may buy or rent immovable property only if he is in possession of a permanent or temporary residence permit. If a temporary residence permit has been issued to an alien, allowing him to stay for a short while, in a particular area of the RSA, property may be sold or let to him only in that area. A contravention of the Act is an offence.
One does not need a permanent or temporary residence permit to purchase property in the Republic of South Africa if one does not intend on living in the property.
South Africa has one of the best Deeds Registries Systems in the world, which makes it very safe to purchase and sell property in this country.
Property can be owned individually, jointly in undivided shares or by an entity such as a company, close corporation or trust or a similar entity registered outside South Africa.
Property of any kind in South Africa is normally purchased through a broker or real estate agent
The recommended tariff by the Estate Agent Affairs Board is 7.5% plus VAT (currently 14%).
Once you find a suitable property, the Agent will prepare an Offer to Purchase, which is open for acceptance by the Seller for a certain period of time. The Purchaser is not allowed to withdraw the offer in the stipulated period. Contracts with respect to purchase of property must be in writing, contain certain prescribed information and be signed by both buyer and seller to be valid and legally binding.
A deposit is a gesture of good faith on the part of the purchaser and an indication of financial ability, but is not mandatory. This amount will be invested by the estate agent/conveyancer in an interest-bearing trust account for the benefit of the purchaser. The balance of the purchase price will be called upon in the form of a bank guarantee from a local financial institution. Alternatively, arrangements must be made between a foreign and local bank for a back to back guarantee to be issued.
Occupation is the physical occupation of the property whereas possession is generally deemed to be the date upon which the purchaser assumes responsibility for the property and it is customary for the risk of ownership to pass on the date of possession. Transfer refers to the actual date of registration of ownership in the Deeds Registry in favor of the purchaser. Occupational consideration is the rental payable by the party occupying the property belonging to another where the date of occupation and date of transfer differs, which is better expressed in Rand terms or as a percentage of the outstanding balance of the purchase price.
This is a standard clause in all offers to purchase/deeds of sale and means that the property is bought in the exact condition in which the property is found. However, all patent and latent defects present in the property within the sellers' knowledge must be brought to the attention of the purchaser.
The property owner is required by law to be in possession of a valid "electrical compliance certificate" certifying that the electrical installation at the property meets certain statutory safety requirements. The beetle-free certificate certifies that all accessible parts of the property are free of infestation by certain defined beetle and this certificate, whilst a standard inclusion in the Agreement of Sale, is neither a legal requirement nor included in sales of sectional title units. The cost of attending to the necessary repairs in order for the aforesaid certificates to be provided, is generally accepted as being for the account of the seller, although, the parties can contractually agree otherwise.
A property is sold together with all fixtures and fittings of a permanent nature. This will generally include anything attached to the property. In the event of any uncertainty, the purchaser is cautioned to ensure that all items intended to be included in the purchase price are specified in writing in the Agreement of Sale.
As part of its international observance of “money laundering” laws, South Africa has enacted the Financial Intelligence Centre Act (known as FICA). One of the requirements of FICA is for the conveyancer to obtain “know your client” information and as such will request the buyer and seller to provide certified copies of certain documents, such as their passport and proof of residential address.
Once an Agreement of Sale has been signed by both parties, it represents a valid and binding document from which neither party can withdraw without legal consequences unless the agreement is subject to certain conditions which are not fulfilled.
Foreign funds can be paid into any bank account in South Africa. Usually the foreign purchaser will pay the purchase price for the property bought into the trust account of the estate agent that brokered the sale or into the trust account of the conveyancing attorney who attends to the registration of the transaction.
These funds are only paid to the seller on registration of the transaction in the local deeds registry. Until then, the funds may be invested at the non-resident's direction and for his benefit. The operation of such trust accounts is regulated by the estate agents' and attorneys' professional boards.
When a non-resident transfers funds from a foreign source into a South African bank account, a record known as a 'Deal Receipt' is issued by the South African bank. This is an important document and the non-resident will need to submit it to the Reserve Bank when, in future, he sells the property and wishes to return the funds to the foreign country.
A non-resident must open a "non-resident" account at a South African commercial bank, to facilitate loan repayments.
The purchase of the property can be financed by obtaining a loan from a Financial Institution in South Africa, which loan will be secured by a First Mortgage Bond to be registered over the property when the property is transferred.
If you require such a loan to be able to finance the property, a suspensive condition will be inserted in the contract making the sale of the property subject to the loan being granted. In the event that the application for the loan is unsuccessful, the contract shall expire and become null and void.
These are the minimum requirements for the above mentioned to apply for a home loan with a South African financial institution:
Non-residents purchasing a property in South Africa may borrow up to a maximum of 50% of the purchase price in South Africa and not 100% like a South African citizen; the other 50% of the funds must be brought into the country by the purchaser and transferred from a recognized foreign bank to a bank in South Africa. The total amount that may be borrowed is at the discretion of the commercial bank offering the loan.
The banking system in South Africa is dependable, established and highly advanced. Transfer of funds through any registered South African Bank is secure and guaranteed. Once the money transfer has taken place, it is usually held in trust by an attorney or real estate company, either on behalf of the purchaser or the seller until registration of transfer. The holding of the funds in trust by an attorney is a cornerstone of the attorney's practice and is regulated by the relevant Law Societies and secured by the Attorney¹s Fidelity Insurance.
The Exchange Control Rulings stipulates that funds brought into the country by a non-resident may be repatriated at any time, as well as any capital gain thereon after deduction of any Capital Gains Tax payable.
A new immigrant may only repatriate funds introduced from abroad, and capital gains accruing thereon, within the first five years of the date of signature of the Immigrant's Declaration. Thereafter, such person will be bound by Exchange Control restrictions imposed on residents with respect to the repatriation of funds.
South Africa has exchange control regulations which restrict the inflow and outflow of capital in South Africa. Investments into South Africa must be reported to the South African Reserve Bank, which administers exchange control. Some of these powers are delegated to certain banks which are authorized dealers.
It is of fundamental importance to most non-residents that investment funds and funds generated by the investments can be repatriated. Funds introduced into South Africa to acquire property may, together with the profits on resale of the property, be repatriated if the title deed of the property was previously endorsed “non-resident” by an authorized dealer. This practice has been terminated by most of the local banks, which are only prepared to endorse the share certificates of foreign shareholders as “non-resident”. Good record keeping is accordingly of utmost importance to any foreigner who purchases property in South Africa. Non-residents have to apply to take money out of South Africa. The application is usually handled by an authorized dealer who requires the following documents:
1. A certified copy of the seller’s passport.
2. A certified copy of the purchase and sale agreement concluded when the seller purchased the property.
3. The seller’s bank statements confirming the transfer of the funds to South Africa when the property was purchased.
4. A letter from the attorney who attended to the transfer of the property confirming receipt of the funds.
5. A copy of the sale agreement to prove that the seller sold the property at fair market value
Once the contract is finalized, the Seller appoints a Conveyance Attorney that will attend to the registration of the transfer of the property and the Mortgage Bond. The costs attendant on same are for the account of the purchaser, unless contractually agreed to otherwise.
The transfer process:
1. Once the suspensive condition is fulfilled and the bond registration instruction is received, the transfer documents and the Bond Documents are drawn for signature by the Seller and the Purchaser. Should you whish to leave the country during this time, it is a good idea to appoint an attorney by means of a Special Power of Attorney to sign the documents on your behalf in order to avoid the strict signature requirements in the event of the documents having to be signed outside of the country.
2. The Bond Cancellation instruction, for the cancellation of the Sellers Mortgage Bond registered over the property is also applied for at this stage. This instruction will contain the Title Deed of the property, which was held as security by the Financial Institution for the loan that was granted.
3. Once the documents are signed and the transfer costs paid, the Conveyance Attorney will pay the transfer duty and the property rates and taxes required in advance, in order to obtain the transfer duty receipt and the rates clearance;
4. Once the transfer duty receipt, rates clearance, and Bond Cancellation Instruction are received, the Conveyancer can draft the new Title Deed in the Purchaser's name, and the transfer, bond registration and bond cancellation can be lodged in the Deeds Office.
5. The Deeds Office process takes 8 to 10 working days, where after the property is registered in the Purchaser's name.
Steps 1 to 5 take approximately 2 months, but delays can be expected should documents need signature over seas.
As a South African citizen is only allowed to take R2, 000,000.00 out of the country in a life time, the Conveyancer attends to the endorsement of the Title Deed as "Non Resident" in the event of a cash transaction before it is delivered to the new Purchaser. This step is taken to expedite the transfer of the proceeds of the sale of the property off shore once the new Purchaser decides to sell the property.
There are a number of variable costs that should be considered when determining the total amount involved in all property transactions.
1. Transfer costs and transfer duty on the Purchase Price
2. Bond costs based on the loan amount
3. Other costs (if applicable) are:
· Conveyancers Sundry Expenses
· Rates Clearance Certificate
· Issue of Guarantees
· Property Inspection/Valuation Fees
· Insurance Premiums
· Building Loans, - Interim interest
· Pro rata share of rates and taxes
· Estate Agents Commission
A tax levied by the government on transfer of ownership of fixed property.
If applicable to the property, the Purchaser will be required to pay one month’s levy in advance to be adjusted on transfer. Pre-paid levy is not included in the schedule
Exclusive use areas:
Should the Sectional Title Property includes Notarial Deeds for Exclusive Use Area/s there are additional costs applicable which is not included in the schedule
Initiation & inspection fees of banks:
These fees are not included in the schedule and is payable to the bank or bond registration attorney
- Attorney's Fees for conveyancing. These costs are calculated on a sliding scale, which is regulated by a tariff between 1-2% of the purchase price.
are costs incurred for raising mortgage finance. These fees include inspection fees of 0.2% of the bank valuation. Mortgage registration fees according to a prescribed tariff are payable to the registering attorneys.
- normally paid by the seller is 7.5% plus VAT (VAT is currently 14%).
One of the most important issues for the foreign buyer is the tax implications of purchasing a property in South Africa.
South African taxation is based on a revenue income tax system meaning that income earned from a South African source will be subject to ordinary income tax. Accordingly, any rental earned by non-residents in respect of South African properties will be subject to income tax and it is the responsibility of the non- resident to register as a South African taxpayer.
The following will be payable on the purchase and sale of the property:
1. Transfer duty payable prior to registration, which amount is calculated on the purchase price of the property;
2. Property rates and taxes, payable monthly or yearly, and a portion of which needs to be paid in advance before registration to obtain a rates clearance;
3. Capital Gains Tax, calculated on the capital gain or profit once the property is sold. As from 1 September 2007, the Purchaser is liable to pay withholding tax to the Receiver of Revenue on a percentage of the proceeds under certain circumstances
South African residents are liable for the payment of Capital Gains Tax (CGT) on the disposal of any asset, subject to certain limited exceptions.
The proceeds from the sale of the property can be taken out of the country (repatriated) when the non-resident sells the property. Any sums still owing under a mortgage bond over the property must be paid as the sale transaction is registered so that only the net proceeds will be repatriated.