Should I register as a credit provider when selling property?
It often happens during a sale of immovable property that the parties agree to a deferred payment of the purchase price. The purchaser will then pay the purchase price in instalments and the seller will charge interest on the outstanding amount from time to time. Sometimes the parties even agree to the registration of a bond over the property to secure the payment of the purchase price.
What the parties don’t keep in mind, however, is that this agreement between the parties constitutes a credit transaction as defined in the National Credit Act (NCA) and that in certain circumstances the seller will have to register as a credit provider in terms of the NCA.
When does the NCA apply?
To establish if the NCA will be applicable and if the seller should register as a credit provider one should carefully consider the following:
The NCA does not apply where:
The consumer is a juristic person whose annual turnover or asset value is more than R1m.
The relevance of credit agreements
A credit agreement includes a credit facility, credit transaction and credit guarantee or a combination of these. The relevance is the following:
A mortgage agreement qualifies as a credit transaction and the importance is that mortgage is defined in the NCA as “a pledge of immovable property that serves as security for a mortgage agreement”. Mortgage agreement is also defined as a “credit agreement secured by a pledge of immovable property”.
Should I register as a credit provider?
Section 40 of the NCA requires one to register as a credit provider should you have at least 100 credit agreements as credit provider OR if the total principal debt under all credit agreements exceeds R500 000. Principal debt means the amount deferred and does not include interest or other fees.
It follows that if you sell your home to an individual in a private sale (i.e. where he does not get a bond from the bank) and you register a bond as security, you have to register as a credit provider UNLESS the principal debt is less than R500 000 or the buyer is a juristic person and the price is more than R250 000.
What if a seller is not registered?
The implications for the seller could be far-reaching if he is not registered, as the agreement will be unlawful and void, and a court must order that:
The application form to register as a credit provider and also the calculation of the registration fee that is payable to the National Credit Regulator (NCR) can be found on the NCR’s website. If the seller has not registered by the time he enters into the loan agreement he may still register within 30 days after entering into the loan agreement.
Sellers, be careful when you enter into these types of agreements, as non-compliance with the NCA could be costly.
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