I’m selling property in South Africa but I am overseas. What now?
In a property transfer, a conveyancer’s mandate begins with the offer to purchase, a thorough reading of which gives us the framework for the type of transfer that we will be dealing with. We page through the standard clauses and look for the all-important date of sale. It is at this stage that we sometimes find that clients have signed the Offer to Purchase overseas.
When dealing with a seller who is overseas, alarm bells ring, as the seller of immovable property is required to sign a special power of attorney to pass transfer of the property, the original of which must be lodged at the relevant Deeds Office.
At this juncture, it is important to differentiate between a special power of attorney and special power of attorney to pass transfer. In a special power of attorney, a specific legal act is authorized, and the mandate is completed once the specific act has occurred. An example would be where a mother signs a Special power of attorney for her daughter to sign the transfer documents on her behalf. The daughter will then be cited in the Special power of attorney to pass transfer as the agent for her mother and is authorized to sign the Special power of attorney to pass transfer in terms of which a conveyancer is appointed to sign the deed of transfer on behalf of the owner at the Deeds Office.
If the Seller has left a special or general power of attorney behind to deal with the transfer of the specified property, we will contact the nominated agent to sign the necessary transfer documents. The special or general power of attorney will thereafter be lodged with the transfer documents as proof of authority.
If the seller has failed to leave behind an executed special or general power of attorney, he or she will be required to sign the special power of attorney to pass transfer in the country in which they find themselves and must attend to having the document authenticated for use in South Africa.
Should the seller find him or herself in the United Kingdom (excluding Ireland), Zimbabwe, Lesotho, Swaziland, or Botswana, the document will be sufficiently authenticated if the seller calls on the offices of a notary public and signs the special power of attorney before the notary. The notary will then countersign the document and place his or her seal of office on the document.
In terms of the Convention of 5 October 1961 on the abolishment of the requirement of legalisation for foreign documents (also known as the “Hague Convention”), member countries only require a document to be accompanied by an “Apostille Certificate” for it to be sufficiently authenticated for use in another country.
Should the seller find him or herself in a country that is a signatory to the Hague Convention, the seller may sign the special power of attorney at the South African embassy or consulate or before a notary public. The signature of the embassy or consulate official or notary public on the document will thereafter be authenticated by the relevant state authority in the form of an Apostille Certificate.
Should the Seller find him or herself in a country that is not a member of the Hague Convention, the Seller will have to attend the offices of the South African embassy or consulate where the necessary authentication steps will be followed in terms of that country’s regulatory process.
Once the special power of attorney to pass transfer has been sufficiently authenticated, it will be accepted for use in a South African Deeds Office.
In order to avoid the long and drawn-out process of having the special power of attorney to pass transfer authenticated, it is recommended that all persons who own property in South Africa and are in the process of immigrating or leaving the country for a prolonged period, consult with an attorney or conveyancer and have a special power of attorney or general power of attorney drawn up, in terms of which an agent is nominated in the seller’s place to deal with all matters incidental to passing the transfer of the property.
Jaco van der Westhuizen