Selling Your House to a Non-Resident
“Oh, I'm an alien, I'm a legal alien” (Sting’s ‘Englishman in New York’)
South Africa is attractive to overseas property buyers with our world-class lifestyle, depreciated Rand, strong property registration and legal systems, and minimal restrictions against non-resident property ownership.
Which is of course great news for property sellers in any area popular with foreign investors. Coastal and other tourist-friendly areas will appeal particularly to buyers wanting a holiday or retirement destination, whilst those buying purely for investment or business reasons will have a wider focus.
As an upfront note, remember that as the seller it is your right to choose the conveyancing attorney. Do not ever give that right up, and as always sign nothing without first taking specific legal advice.
But can a non-resident buy your house?
Yes - South Africa (unlike many other countries) imposes few restrictions on non-resident property buyers. Only “illegal aliens” (foreigners unlawfully in South Africa) are totally barred from ownership.
There are however some aspects that both you and your prospective buyer should be aware of -
- What laws and requirements apply? South African legal and regulatory requirements apply, and non-residents should take local professional advice on anything they aren’t sure of, to avoid unnecessary delay and to ensure a smooth sale and transfer process.
- Can the buyer buy in an entity? Certainly, but specific rules and tax considerations apply when an entity like a company or trust is the purchaser – professional advice is essential, and as a seller be aware of possible delays in the transfer process.
- Signing documents: The sale agreement itself can be signed anywhere and is valid so long as it is in writing and physically signed. However, when it comes to the signing of transfer documents for the Deeds Office and bond documents for the bank (if a bond is applied for) the buyer should if possible sign in South Africa. If that isn’t possible, the buyer can either appoint a local trusted representative via a Power of Attorney, or sign documents overseas with proper authentication in terms of either Rule 63 of the Uniform Rules of the High Court (of South Africa), or by means of an Apostille, aligning with the requirements of the Hague Convention of 5 October 1961 (these options usually involve signing in front of a notary public in certain countries, or at a South African embassy or South African Consulate office, but your Conveyancer will advise, as the requirements vary depending on circumstance).
- Costs: Overseas buyers should understand what costs are payable by them and should consider big-ticket items like transfer duty (or VAT if applicable). Your conveyancer can help the prospective buyer with a cost estimate to avoid any cash flow issues and delays during the transfer process.
- Mortgage bonds: South African banks offer bond finance to non-residents, generally subject to both their normal criteria relating to affordability and so on, and to a “50/50” limit - the amount of the loan must be matched by an equal cash payment (usually by import of foreign funds). Note that this limit only applies to non-residents, so foreign nationals who are legally resident in the country may, and this varies from bank to bank, qualify for larger bonds of up to 75%, perhaps more in some cases. Compliance with FICA (the Financial Intelligence Centre Act) will require identification of the buyer and proof of residential address.
- Repatriating the money: When the non-resident eventually resells, they can repatriate the imported foreign funds and any proportional profit. It is essential for the buyer to keep all records relating to the original purchase and the “deal receipt” proving import of funds, as this would be required in due course to submit to SARS as proof of their actual Capital Gains Tax.
- What income- and capital gains taxes are payable? If the property is rented out, rentals are subject to local income tax. On resale, CGT (Capital Gains Tax) applies, but with a caveat that non-residents should take note of Withholding Tax (as a sort of pre-estimate of CGT) that may apply in the event of the non-resident selling their property for more than R2,000,000.00.
Provided by Van Zyl Kruger
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