The Following Certificates are required before Transfer Of Property may be concluded

As you know, when a property is transferred; many certificates have to be obtained prior to registration. Some of these certificates are required by law, and others have merely become custom stemming from a need arising in a particular area/s. I have also included some which are not always required, but we often receive queries on the topic:

1. Entomologist Certificate -

This is not a legal requirement, but more a custom in specific areas, mainly along the coastal areas. In KwaZulu Natal, there is the presence of wood-borer and wood destroying insects. Accordingly, it is vital for these certificates to be obtained, to certify that as at registration there are none of these insects on the permanent/ attached wooden structures on the property. The Seller is typically responsible for the costs of obtaining an entomologist certificate, unless the sale agreement states otherwise.

In light of the fact that some of these wood destroying insects can fly, it is hard to for the accredited company issuing the certificate to guarantee that the property is free from infestation and accordingly these clearances are only therefore valid for 3 months. On the date of transfer, one has to have a valid certificate in place. It is accordingly essential to time the obtaining of the clearance carefully, to avoid having to repeat the exercise if there is a delay in the transfer.

If a bond is going to be registered simultaneously with the transfer, the bondholder generally requires a copy of this clearance before giving a proceed to lodge. These certificates are not lodged in the Deeds Office but are given to the Purchaser, Bondholder and a copy retained in the Conveyancer’s file.

2. Electrical Compliance Certificate -

This is a certificate required by law and is set out in Occupational Health and Safety Act of 1993 which came into effect on the 01 May 2009, (excluding regulation 5(6) which came into effect on 01 April 2010) which requires that if there are any structures on the property which have an electrical installation, a compliance certificate is required to certify the installation is safe and adheres to the legal requirements. The reason for this requirement is to avoid faulty installations which may cause a fire or be a fire hazard. It is the Seller’s responsibility to provide the compliance from an accredited company, at their cost (unless otherwise agreed). These certificates are valid for 2 years unless there has been tampering with the electrical installation. To avoid any unnecessary dispute, even if there is valid compliance in place which is older than 6 months, we obtain a new certificate as there is no guarantee that the tenant/owner has not tampered with the installation and this avoids any comebacks after transfer.

Bondholders also generally call for this certificate prior to issuing a proceed to lodge. It is essential that the details which appear on the compliance are correct as these are scrutinized by the bank, and a discrepancy in the property address/description, for example, will result in the certificate being rejected. This certificate is not lodged in the Deeds Office.

3. Gas Installation Compliance Certificate -

Further to the above Act (Occupational Health and Safety Act 85 of 1993 - Regulations and Notices - Government Notice R734), it became a legal requirement for all gas installations, or repairs to that, to be compliant with the regulation. Therefore, a compliance certificate is required – confirming that the installation is in accordance with the legal requirements and is accordingly safe. This is apparently to avoid fires and explosions. The Act is silent as to how long a certificate is valid, but for the sake of transfers, we insist on a new certificate being obtained every time there is a change of ownership.

It is the duty of the Seller to obtain the certificate, which can only be obtained from an authorized person registered with the Liquefied Petroleum Gas Safety Association.

4. Electric Fence Installation Compliance Certificate -

Regulation 12 of the Electrical Machinery Regulations, 2011 imposes an obligation on the user of an electric fence (owner or occupier of the property) to have a certificate of compliance (not the same as an electrical compliance certificate). This certificate does not apply to systems in existence prior to October 2012; however, this certificate will be required as soon as there is a change in ownership or the system is upgraded or altered in any way after the 1st October 2012. The Sale Agreement must now include an appropriate clause if there is an electric fence on the property. The fact that a transfer is registered after October 2012 is the trigger making an electric fence compliance certificate necessary.

In the case of a Sectional Title, it is the duty of the Body Corporate to obtain the compliance certificate and retain same for safe keeping. We do not have to obtain one each time we handle a sectional title transfer. The same applies to developments governed by a Home Owners Association.

Please remember, if the electric fence is not operational, please disclose same in the agreement so that the conveyancers do not have to obtain compliance. Failure to do so could be costly to the Seller, who may have to undertake repairs to make system legal.

5. Rates Clearance Certificate -

In terms of the Municipal Systems Act 32 of 2000, Section 118 states that “A registrar of deeds may not register the transfer of property except on production to that registrar of deeds of a prescribed certificate.” A rates certificate is obtained by the Conveyancer from the local municipality prior to the transfer of a property and lodges same with their documents for scrutiny by the Registrar of Deeds.