PURCHASING PROPERTY IN SOUTH AFRICA AS A NON-RESIDENT

There are various issues involved in purchasing property in a foreign country which extend beyond the mere signing of contracts, documents and paying of money of which the average non-resident interested in purchasing property, is unaware, or would like to know, but is perhaps unsure who to ask.

To this end, we have put together some questions we are frequently asked by non-residents that we trust will assist in answering the many questions you may have. This brochure should be read with our "Buying Property in South Africa" and "The Complete Guide to Buying and Selling Property in South Africa" pamphlets in order to obtain a comprehensive idea on the processes involved in buying and selling South African property.

Are there any restrictions on non-residents buying property in South Africa?

The answer is a resounding NO, save for a prohibition on illegal aliens owning immovable property in SA. Non-residents will of course be subject to the same laws and regulations as South Africans and it is compliance with these that ensure the efficiency of our land registration system and security of tenure.

Should the non-resident not wish to purchase the property in his or her individual name and rather purchase in the name of an entity, this entity must be locally registered and meet the requirements inherent in registration of the chosen entity, such as those contained in the Companies Act. For example, the non-resident may decide to own the property through share ownership in a company, membership in a close corporation (unique to South Africa) or as a beneficiary in a Trust. If the non resident does acquire property in an entity then that money brought in represents a loan to the local entity which would require exchange control approval. More of this further on.

For the most part however, property is registered in the name of the purchaser as an individual. There may be specific reasons for registering it in the name of a different entity and for a brief overview of these, kindly consult our "Purchaser's Guide to Alternate Entities for Acquiring Ownership Of Immoveable Property".

Please note that as a purchaser, you need to have finalized your intentions with regards to the vehicle selected for purchasing the property prior to signing any Offer to Purchase or Agreement of Sale as this cannot be changed at a later date without the possibility of incurring serious penalties and resulting in delays in the transaction.

Finally, a non-resident can even purchase South African property over the internet without entering the country; however, should he or she intend residing in the property for any length of time, he or she will need to comply with the Immigration Act and either have a valid permit to temporarily remain in the country, or be in possession of a permanent residency permit.


How do I bring foreign funds into SA for a property acquisition?

Foreign funds can be paid into any nominated bank account in South Africa. Usually this account will be the estate agent or transferring attorney's trust account into which the deposit for the property and the balance of the purchase price is paid. This money will be invested for the non-resident's benefit and the non-resident can rest assured that such a transfer is secure and guaranteed, as the operation of those trust accounts is regulated by the professional boards overseeing both the attorneys' and estate agents' professions.

When the non-resident transfers funds into a South African bank account from a foreign source, a record of the foreign funds entering the South African bank is kept and is known as a "deal receipt". This is an important document that must be kept for purposes of repatriation of the funds.

Can I borrow money in SA to purchase property?

The South African Reserve bank will consider all foreigners not having their domicile in South Africa to be non-residents, barring foreigners with South African work permits who will be considered residents for the duration of their work permit. What this means is that non-residents are restricted in their borrowing ratio to 50% of the purchase price while the remaining 50% must be brought into the country in cash from a foreign bank. In order to qualify for a South African mortgage bond, the non-resident will need to provide proof of earnings and comply with the Financial Intelligence Centre Act, which, although a mouthful, pertains to the non-resident's identification for money laundering purposes and involves production of certain documents such as passport and proof of residential address.

Can a non-resident open up a bank account at a South African banking institution?

In order for a non-resident to service repayments on a mortgage bond, he or she will need to open a non-resident account which can be done from abroad or from within the country. Again, certain documentation relating to the applicant's identity will be required (application form with names, passport numbers and addresses, certified copies of relevant pages in the passport as well as proof of source of income such as salary slips or pension statements, which copies must be certified).Once open, foreign funds will need to be deposited immediately.

In certain circumstances, local currency can be deposited into the account, for example, receipt of rental acquired from property belonging to the non-resident. This is in order provided that the bank is in possession of a certified copy of the rental agreement. Obviously the rand value received on sale of immovable property in South Africa may also be receipted into the non-resident account providing the necessary documentation precedes the deposit.

Who chooses which attorneys will attend to the transfer and whose interests are the attorneys protecting?

It is customary in SA for the Seller of immovable property to nominate the attorneys who will attend to the transfer. Those attorneys then act for the seller and on his or her instructions. Consequently, in the event of a dispute between the seller and purchaser, the purchaser would need to seek independent legal advice from other attorneys.Whilst the seller selects the attorneys, the purchaser pays the transfer costs. More about this further on.

Can transfer and bond documents be signed overseas and if so, what is the procedure?

Yes; however, there are certain formalities that need to be complied with. Documents can be signed either before a Notary Public or at the South African Embassy in that country. It can be costly and time consuming though. If a seller or purchaser is in the country at the time of sale and will be flying back overseas, it is advisable for them to leave a special or general power of attorney in favour of either a friend or family member here in SA, if possible.

Other than the purchase price, am I liable for any other costs when purchasing property?

Yes. The purchaser is usually liable for the following costs: transfer duty (a tax levied on property and based on the purchase price. This is not payable if the seller is VAT registered), transfer fees, deeds office levies, pro-rata rates and taxes/ sectional title levies, as well as the costs of obtaining a rates/levy clearance certificate. Most of these costs are determined according to the purchase price of the property. Please consult our tariff guide, namely our "Buchanan's Book" for a full list of these costs.

The purchaser will incur further costs if he or she registers a mortgage bond, including the attorney's fees and bank charges such as the initiation and valuation fee

Once the purchaser takes transfer of the property or assumes the risk therein, he or she will be liable for all costs and risks associated therewith. If the property is not bonded, it will be in the purchaser's best interests to obtain insurance. This is compulsory if the property is bonded and normally arranged by that bank.

If I decide to sell the property, will I be able to take my money out of the country?

Understandably, this is no doubt the number one question non-residents need answered before investing in South Africa. The answer is simply, yes. Money from a foreign source may be repatriated in due course according to our Exchange Control Regulations, together with any profit, proportionate to that non-residents share-holding in the property. (Consider a non-resident who has purchased a property 50/50 with his girlfriend who is a SouthAfrican resident but funded the full purchase price with funds from off-shore.)

On transfer to the non-resident purchaser of the property, the title deed will be endorsed "non-resident' and /or a deal receipt retained by the banking institution when the foreign funds were originally introduced into the country. This then facilitates the repatriation of the funds and profit on sale of the property, as long as they are able to satisfy the bankers that such profit is reasonable and market related. Obviously if the purchase was financed with funds borrowed in South Africa, that portion of the purchase price cannot be repatriated out of the country unless the bond has been settled in full.
Furthermore, if a foreigner takes up permanent residency in South Africa and signs a Declaration and Undertaking at a South African bank (namely to declare whether they are in possession of foreign funds and to undertake not to place these at the disposal of anyone resident in the Republic) they will be considered a resident for exchange control purposes and only able to repatriate funds within five years of their immigration, following which they will be considered akin to a South African and subject to the same regulations and limitations.

Finally, the repatriation of funds will be subject to capital gains tax of which we will have more discussion in due course.

As a non-resident, am I liable for payment of any South African income tax?

While South Africans are taxed on their worldwide income, non-residents are liable for income tax only on that income accruing from a South African source. So, if the property is rented out for example, that rental income will be subject to South African income tax.

On disposal of the property, the non-resident will be liable for payment of capital gains tax. For property registered in the individual's name, 25% of the profit will be taxed at the individual's marginal income tax rate. The maximum marginal rate is currently 40%, and this therefore translates to a maximum flat rate payable of 10% of the capital gain.

Up until recently, an obligation existed on non-resident sellers to register as income tax payers in the year of disposal of their immovable property here in SA. However, this was not being done and our Receiver of Revenue was losing out on income tax that was payable. Accordingly, measures have been introduced which will tighten their tax collection net considerably. In terms of new proposals to the capital gains tax legislation, an obligation will be imposed on any purchaser who purchases a property from a non-resident for a purchase price exceeding R1-milllion to retain a percentage of that purchase price and to pay it over to SARS within 10 days from the date of transfer of the property. The amounts that will be retained are 5% if the seller is a non-resident individual, 7.5% if the seller is a non-resident company or close corporation or 10% if the seller is a non-resident trust. This amount will then operate as an advance collection against the non-resident’s income tax liability for the year of assessment in which the property is sold.

Finally it is important to note that a non-resident who has not permanently immigrated to South Africa will be considered a resident for income tax purposes if he or she spends more than a certain amount of time within the country. This is known as the "physical presence test" and is calculated over days spend in the country over a three year period.
No tax is levied on foreign pensions.


What about estate duties on death?

Any inheritances bequeathed to surviving spouses are not subject to estate duty which is usually levied at the rate of 20% of the dutiable amount. Non-residents, like South Africans, will have a R1.5 million exemption on their dutiable assets; however, unlike South Africans, this dutiable amount will be limited to assets situate in South Africa.

 

Information supplied by s t r b Smith Tabata Buchanan Boyes Attorneys.