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South Africa has a reputation of having one of the best deeds registration systems worldwide. Property can be owned individually, jointly or by entities such as a companies, close corporations, trusts or similar entities registered outside South Africa. However, buying property in any foreign country can be complicated and not without legal implications.

Form of Ownership

Form of ownership
There different types of land ownership in South Africa, the most common of them being:

Freehold title
The buyer purchases a freestanding property and takes ownership of the land and the buildings attached to it. The buyer receives a separate title deed to the property and is solely responsible for all maintenance and servicing to the property.

Sectional title
A purchaser buys a unit (section) in a complex or apartment building. He gets a title deed for his section whereby he owns the section as well as an undivided proportionate share of the communal property. He contributes to shared expenses on a pro-rate basis and is governed by a set of management and house rules.

Tax implications as a non-resident

Non-residents who purchase property in South Africa are required to register as South African tax payers solely for the purposes of their capital gains tax obligation. At the moment, the highest rate of capital gains tax in South Africa for individuals is 10% of the capital profit. The South African Revenue Services have enacted, where immovable property in South Africa is purchased by any person from a non-resident, that purchaser (through the conveyancing attorney) must withhold and pay over to the South African Revenue Service (SARS) from any amount to be paid to the seller or the seller's agent:
•  5% of the amount payable where the seller is a natural person;
•  7.5% of the amount payable where the seller is a company; or
•  10% of the amount payable where the seller is a trust.

The above only pertains to properties that sold for more than R2 Million. The full proceeds of sale, (less any capital gains tax obligation), can be taken out of the country.

Financing the transaction

South African exchange control regulations determine the extent to which foreign buyers can borrow money locally to fund the purchase.

Non-resident purchaser who does not work in South Africa
•  Non-resident buyer will not granted more than 50% of the purchase price to fund the purchase.
•  The balance must be paid in cash and this may be cash generated in South Africa, or off shore funding.

Non-resident purchaser who is on a temporary work permit in South Africa
•  May be granted more than 50% of the purchase price, but the loan amount will still depend on the bank's criteria.
•  A condition of the loan will be that the buyer reduces the bond to less than 50% of the registered amount before they leave South Africa to go back abroad.
•  Some institutions would possibly require a work permit of at least 4 years before they would consider a bond for more than 50% of the purchase price.

The following documentation will be required by the banks before they consider a non-resident for bond approval:

 •  A certified copy of the passport;
 •  3 months overseas bank statements;
 •  3 months' payslips (6 months statements and payslips where the purchaser earns commission or is paid overtime).

Once the loan is granted

One option available to a foreigner is to open a special "non-resident" bank account with a South African Financial Institution and ensuring that all funds expended for purposes of the property investment, go through that account.  Your second option is that the funds be transferred directly to the conveyancing attorneys who are appointed to attend to the registration of the transfer of ownership of the property. If requested they will cause the title deed issued to be endorsed by the attorneys' own bankers, facilitating the repatriation of the funds when required.

Legal Capacity to enter into a sale agreement

The buying and selling of property in South Africa is governed in terms of our common law. The transferring attorney's requirements to conclude the transfer are almost the same to that of a transfer to a South African resident, except that regardless of your foreign marriage regime, your spouse still has to sign all the documents pertaining to the purchase of the property.

Signing documentation outside the country

Conveyancing documents must be signed before either a notary public of the country where the person lives, or at the South African Consulate or Embassy in such country. It is less costly to sign the documents with the South African Embassy in another country however appointment is required with the embassy.

Repatriation of funds/resale of the property

Once a non-resident has brought cash into the country with the intent to purchase property, he can repatriate it (together with the profits thereon) provided the funds were brought through the correct channels when first introduced into the country. The following documentation should be kept by the foreign purchaser to avoid any delays regarding the repatriation of funds from the sale of the property:

•  Proof of the derivation of the purchasing funds, including statements on the foreign transferring account as well as the receiving conveyancer's bank statements
•  A copy of the original sale agreement.

Upon the eventual sale of the property, application will be made for Exchange Control Approval for the repatriation of the funds, supported by the following documents in addition to the documents as set out above:

•  Sale agreement (onward sale);
•  Conveyancers final statement of account reflecting calculation of the sale proceeds;
•  Foreign bank account information;
•  Id and proof of residence of non-resident.

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