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NON-RESIDENTS

Property is a major investment and therefore a Non-Resident should consult a Property Attorney/ Conveyancer on their legal rights and obligations before signing any Offer to Purchase which, once signed, becomes the binding Sale Agreement.

FAQ’s

  1. Does South African Law restrict Non- Residents from buying property?
    No, there are no restrictions on property acquisition by a non-resident, excepting for a prohibition on illegal aliens.
  2. In whose name should the property be bought?
    Most property in South Africa (SA) is purchased and transferred into the name of a natural person. Should a non-resident wish to acquire property in the name of a juristic person, such company, close corporation or trust must first be registered. In such instances funds brought into will be reflected as a loan to such juristic person and will require exchange control approval.The non-resident should finalize their chosen entity to become the registered owner prior to signing any Offer to Purchase as changes thereafter could result in transfer duty penalties and a delay in transfer.
  3. How are foreign Funds transferred to SA to acquire a property?
    Foreign funds can be paid into a nominated bank account in South Africa. It is advisable for these funds to be transferred into an Attorneys trust account which is guaranteed by the Attorneys Fidelity Fund. These funds are invested in an interest bearing trust investment account with interest accruing thereon to the non-resident until the funds are required.
  4. Can a Non-Resident use Mortgage Bond Finance in SA to acquire a property?
    Yes. Non-residents may borrow up to 50% of the purchase price. The SA Reserve Bank will deem all foreigners not domiciled as non-residents, excepting those with SA work permits who will be deemed to be residents for the duration of their work permits. All applicants for mortgage finance will need to provide proof of earnings and comply with the Financial Intelligence Centre Act (Fica).A non-resident may also open a non-resident bank account in person at the SA Bank to deposit funds to service the mortgage payments.
  5. Can the sale proceeds be repatriated?
    Yes. Money from a foreign source plus profit may be repatriated proportionate to the non- residents shareholding in the property in terms of South African Exchange Control Regulations.To facilitate the repatriation of the funds at a later stage on re-sale, the title deed will be endorsed as non-resident on transfer of the property and a deal receipt will be retained by the bank receiving the foreign funds. The SA Bank will require documentary proof that the profit is reasonable and market related and that all South African tax including capital gains tax, has been paid to SARS in order to finalize the repatriation of the foreign funds.
  6. Non-Residents Withholding Tax on transfer: Should a Seller not be a resident as contemplated in Section 35A of the Income Tax Act 58 of 1962 and sell a property for a purchase price exceeding R2 million, the Purchaser is required to withhold from such Seller a prescribed portion of the purchase (the withheld amount) and to pay such amount to South African Revenue Services (SARS) on account of any Capital Gains Tax payable by the Seller in respect of the sale. Currently such withheld amount of the purchase price payable to SARS is 5% where the Seller is a natural person, 7.5% where the Seller is a Company or Close Corporation and 10% where the Seller is a Trust.

The Agreement of Sale should cover withholding tax by incorporating the following clauses:

  • Seller should warrant whether or not he/she is a resident of South Africa.
  • Seller and Purchaser should irrevocably instruct the Conveyancer to deduct any withholding tax and to pay such withheld amount to SARS on transfer of the property.
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