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Buying/selling property? The requirements for sale of immovable property and just how important they are!

Those involved in drawing up a deed of sale for property have to at all times to be aware that in terms of the Alienation of Land Act 68 of 1981, no sale is effective unless it is in writing and signed by both parties or agents acting on their behalf.

requirements for sale of immovable propertyAs lawyers have stressed time and again regarding the requirements for sale of immovable property, it is also essential that, a) the property is properly described and b) that those acting as agents on behalf of a client must have written authority to do so. At the same time, the term agent can be taken to include any relative, friend or associate to whom the responsibility has been assigned. It does not necessarily mean an estate agent.

Two recent court cases have driven home these lessons.

The cases demonstrating those requirements for sale of immovable property

In the case Swanepoel v Nameng the seller tried to exit from the deal on the grounds that the sale was invalid as the property had been described as erf 1173 when it was in fact 1172 and/or the agreed sale period had been exceeded as the loan was approved after the agreed date.

The Supreme Court of Appeal took note of the fact that the estate agent had spotted the erf number error and had rectified it.

The court then took the view that the Alienation of Land Act does not insist that the description of the property has to conform exactly with the buyer’s and seller’s understanding of it; it is their original definition that will be the defining factor. It also took the view that, as the suspensive condition on the original sale had been met in time, the amended agreement had not introduced a new suspensive condition.

In the second case, Lombard v Dropprop cc, a tenant renting a farm from a close corporation drew up a lease with the owner in which the land was described as a certain portion of 526 of lot 432 of Melkhoute Kraal. This lease gave the tenant an option to buy which the tenant then exercised.

The owner had, however, changed his mind about selling and tried to get out of the deal by saying that the word certain created doubt as to what was to be resold and/or that the member of the cc who had signed the lease had no written authority to sign and option to sell.

The Supreme Court ruled that the word certain had not confused the issue, the original agreement’s intentions were clear and that the cc member’s signature was sufficient to validate the deal as it is only if an outsider signs on the cc’s behalf that his authority has to be confirmed in writing.

Lessons to be learned in terms of requirements for sale of immovable property

The time and money spent on those cases should be a warning to prospective sellers and buyers of property that it is important to describe the property accurately at the outset and to see that the deal is then signed by the participating authorities.

The wording should be sufficiently detailed and precise to cover all eventualities, such as a leased property now being sold. A check should always be made that the agent signing on behalf of another has the full authority to do so.

Litigation is expensive and wearying. A good lawyer will steer his clients away from it. Fortunately, although mistakes and imprecise wording are encountered, a reputable conveyancer will put these matters right early on and in most cases there is no problem because the parties remain committed to the deal. It is in these cases where one party changes his mind that legal technicalities can be used to delay or frustrate the other party.

Images courtesy of digitalart and Stuart Miles at FreeDigitalPhotos.net.

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