This week, our panel of experts deals with a frustrated reader’s attempt to purchase a property.
The reader says she has signed all the required transfer documents drafted by the conveyancer, but the seller refuses to sign them. When the reader enquired about the delay, she was informed that the seller no longer wishes to sell.
Due to a lack of communication from both the agent and seller, the reader has turned to our panel for help.
She would like to know if she may enter into another sale agreement with a different agent, but is concerned about the costs associated with the existing agent and conveyancing attorney. The reader also wishes to establish whether she could sue the seller for breach of contract.
Braam Swart from Braam Swart & Partners in George says the process of transferring ownership of a fixed property normally starts with the seller and purchaser signing an offer to purchase. “Once both parties have signed this contract, a valid agreement of sale is constituted – assuming the formalities in terms of the Alienation of Land Act are met.”
Swart says the next step is for the conveyancing attorney to prepare the legally required set of documents. “These must be signed by the seller and purchaser and lodged with the relevant Deeds Office.”
Should one of the parties delay this process by not signing, they may be in breach of the terms of the agreement of sale, says Swart. “The terms of the agreement will help our reader determine what happens if either party is in breach.
“For example, it should state how much notice must be given to the party in breach to remedy the situation before the agreement can be cancelled by the aggrieved party.”
According to Swart, the reader could also consider suing for specific performance, compelling the seller to transfer the property.
With regard to payment of the professionals involved, says Pieter van Rensburg, principal of Chas Everitt in George, the purchaser usually pays the conveyancer’s costs. “If the sale is cancelled, the conveyancer may still hold the purchaser liable for wasted costs.”
This could constitute grounds for a recovery of damages suffered by the purchaser, according to Van Rensburg.
“However, the conveyancer may demand that the purchaser first pay the wasted costs. Because of the protracted nature of such cases, the conveyancer won’t necessarily wait for a civil action to be finalised.”
Van Rensburg says the agreement of sale may again determine that the party responsible for the cancellation is responsible for any wasted costs, so it is important to check this document carefully.
Should the agreement of sale be cancelled, the agent involved could claim for loss of commission, says Van Rensburg.
“The seller is usually the party liable for the agent’s commission. The agent should therefore approach the seller should he feel that – despite further actions by both parties – a valid agreement of sale was effected as a result of his efforts.”
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