Often you, as the seller approach, or are approached by various estate agents, in order to market the property, find a buyer and conclude the sale. By the time you receive an offer that satisfies your requirements regarding the price, you grab the first pen you can find and sign on the dotted line. Now you can simply sit back and relax, knowing that a valid and binding contract has been entered into. Or has it…
Most, if not all, estate agents present sellers with a pro forma contact, signed by the potential buyer, ready for you sign, thereby constituting an agreement of sale. You feel confident that this contract protects the rights of all parties involved. Question is however, have you (and the buyer) properly read the document? Do you fully understand all the terms, rights and responsibilities enshrined in the contract? Are you sure that it complies with all the legal requirements?
Sure, most, if not all pro forma contracts presented by estate agents were once drawn up by an attorney and one might be forgiven to assume that the contract meets all the legal requirements. But can you be sure that it does?
Do you know what references to the Alienation of Immovable Property Act means? Are you sure what “voetstoots” really means in light of the Consumer Protection Act, and the impact it might have on your transaction? When you provide certain guarantees with regards to building restrictions, servitudes and defects, are you fully aware of what those are and the possible consequences of providing such guarantees?
Did the purchaser, when signing the offer, have the necessary authority to do so – if the buyer is married in community of property both spouses are required to signed the offer, alternatively the signing spouse has to obtain consent from the other spouse in terms of Section 15 of the Matrimonial Property Act. If the buyer is a trust or a legal entity, has the person who signed the offer been properly authorised to do so?
The list of questions you have to ask regarding validity, legality and protection of you interest, is long, tedious and complicated. In the rush to finalise the sale neither sellers nor buyers stop to consider any of these issues. They assume that the pro forma contract should suffice and that, since it is presented by the estate agent that it is the only document available to them.
So many contracts land in court as result of some kind of dispute which could have been avoided had the parties taken the time to refer the offer to an attorney for review. Be aware that the offer to purchase does not have to be the pro forma offer presented by the estate agent. You have the option to request an attorney of your choosing to draft a deed of sale.
Contact us should you wish to have an offer to purchase reviewed or should you require one to be drawn up to suit your specific needs. Your piece of mind is our top priority.