Sean Radue
A wary seller has asked the YourProperty expert about the dangers of a transaction in which the eager purchaser wants to transfer the full purchase price and take occupation immediately.
See the reader’s question here.
According to Sean Radue of Radue Attorneys in Port Elizabeth, all sales of fixed property must be recorded in writing as provided for in the Alienation of Land Act.
“The act states that ‘no alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority’.”
From the above it is patently clear that the parties should always conclude an agreement of sale that details all or at least the most important aspects of their agreement, says Radue.
“The description of the parties, the property being sold and the purchase price are the obvious details but there are others that, if not concluded, could become problematic in future should things go wrong.”
He says other aspects to include are, for example, the date of occupation, occupational rental, fixtures and fittings and the like.
“From a legislative perspective, a hastily concluded verbal agreement is not sufficient to constitute a sale of land.”
Even if this were acceptable, proof of the other terms of the agreement would be required in the event of a dispute, says Radue.
“Any warranties or representations about the property could become an issue of dispute.”
He says there is duty on both seller and purchaser – the former to disclose any known defects and the latter to conduct a fair inspection of the property.
Radue says the purchaser’s eagerness to pay the purchase price over to the seller is equally concerning.
“If the seller was a less than savoury person, the purchase price could have been paid over with no supporting documentation having been concluded and the purchaser may have battled to get her money back if the sale didn’t subsequently take place in the right way.”
After the conclusion of a written agreement, the nominated conveyancer usually calls upon the purchaser to pay certain monies or provide certain guarantees, he says.
“An example would be where a mortgage bond must be concluded to provide funds for the purchase price or part of it.”
Radue says other costs payable usually include transfer fees and/or duties and monies for a rates clearance certificate.
“Any monies not immediately required could be invested for the benefit of the purchaser including any interest accrued.”
The purchaser, clearly wishing for a speedy transfer, could ensure that all documentation required for the timeous transfer of the property is signed and returned to the conveyancing attorney as quickly as possible, he says.
“Occupation, if required at this early stage, could be granted in the agreement of sale and at the agreed occupational rental.”
Radue says this is usually paid monthly and is also calculated pro rata in the case of whole months not being applicable.
