Non residents purchasing property in South Africa.
Are there any restrictions on non-residents purchasing and owning property in South Africa?
Investing in property is always an exciting yet overwhelming experience. Favourable exchange rates create a particular appeal for foreigners buying property in South Africa.
Non-residents or foreigners are generally subject to the same laws as South African nationals, and they can purchase and own immovable property in South Africa without any restrictions. South Africa is reputed to have one of the best deeds registration systems in the world, and our Constitution enshrines and protects the rights of all property owners. The only non-residents disqualified from owning property in South Africa are illegal aliens.
Which entities can be used by non-residents to purchase property in South Africa?
It is possible for a non-resident to own property individually, jointly or in the name of an entity, such as a company, a close corporation or as a trust, provided that the entity is locally registered.
Should a non-resident elect to purchase property in the name of an entity, exchange control approval will have to be obtained, as the funds being brought into the country will be regarded as a loan to the locally registered entity.
It is imperative that foreign buyers consider the contractual and funding implications that arise when purchasing a property, due to exchange control regulations that are applied in South Africa, as well as the practical implications regarding the registration of ownership of property.
If a buyer chooses to purchase a property in the name of an entity and not in their individual capacity then the purchaser will need to finalise their choice of entity in which to purchase the property before signing the Offer to Purchase, as no changes can be made at a later date with regard to the parties to the contract. A new Offer to Purchase will have to be signed if the purchaser changes from an individual to an entity or vice versa. The seller will then have the election to either accept or reject the offer. In South Africa, an Agreement of Sale becomes binding upon acceptance by the seller, and in order to fully understand the implications of the Agreement of Sale, one should seek advice from an experienced Attorney or Estate Agent.
When purchasing a property in South Africa as a non-resident, it is essential to note the following,
Although there are various countries that do not require visas to travel to South Africa for a period of fewer than 90 days, foreign nationals from visa restricted countries will need to apply for the relevant visa. The type of visa for which they will need to apply is determined by their country of origin, the purpose of their visit and how long they intend on staying in the country.
Non-residents will need to comply with the Immigration Act if they intend to stay in their South African property for extended periods.
Signature of the relevant conveyancing documents
Where documents are to be signed by sellers or purchasers outside of South Africa, specific requirements need to be adhered met. When signing bond or transfer documents abroad, such seller or purchaser will need to have the documents signed either at a Notary Public, who, depending on the country of signature, may need to have the documents authenticated by means of an Apostille Certificate. Alternatively, the purchaser could also sign the necessary documents at a South African embassy. The original documents will then need to be returned to the conveyancers attending to the transfer and bond registration.
South African exchange control regulations determine the extent to which non-residents can borrow money from South African Banks or financial institutions. However, a mortgage bond is available to non- residents to fund the property being purchased. Usually, a foreigner is only eligible for a bond for 50% of the purchase price of the property. The balance must then be paid in cash, which may be generated in South Africa through off-shore funding.
Foreign funds can be paid into any bank account in South Africa. In most instances, the non-resident will pay the deposit and the balance of the purchase price into the trust account of the transferring attorneys. These funds are then invested for the non- residents benefit with interest accruing to the purchaser up to the date of the transfer.
Foreigners who have temporary work permits may be granted more than half of the purchase price, but the loan amount will still depend on the bank’s criteria.
All non-residents, as well as South African residents, are liable for the ordinary costs of transfer which is payable by all purchasers when purchasing a property. Non-residents are also responsible for any transfer duty applicable, should the value or the property being purchased exceed R900 000. If the property is being purchased from developers, the property purchased will generally attract VAT (if the Developer is registered for VAT) as opposed to transfer duty, which will then be incorporated into the purchase price.