Estate Living Magazine Invest SA - Issue 41 May 2019 | Page 13

ENTERING THE HOUSING MARKET AGAIN
Whether due to retirement or
down-scaling, many people at
present fi nd themselves back in
the property market after many
years’ absence therefrom. It is
therefore prudent to remember
that, in the midst of the to-ing and
fro-ing between a seller and
purchaser in negotiating the sale
of such a substantial investment,
every care should be taken to
ensure compliance with the law to
ensure that each party’s interests
are protected.
A recent judgment illustrates the
dangers that can innocently creep
in. The facts in Cooper v Clark
were briefl y that the seller, Clark,
received an offer from Cooper, the
purchaser, in respect of her
R6,3 million property. Clark was in
principle in agreement with the
offer and was keen to accept it,
although she wanted to amend
one or two ‘small’ things about the
details. To make sure the deal is
not lost, Clark made two
amendments to the offer to make
the whole arrangement acceptable
to her, and then signed it. One of
these amendments had the effect
of deleting a clause providing for a
building inspector who would, at
Cooper’s costs, make a list of
defects in the property by a
certain date.
Before Cooper received a copy of
the offer as ’signed and accepted‘
by Clark, she paid the deposit.
Thus only when Cooper
subsequently received a copy of
the signed document, did she
become aware of the changes.
She did not agree with these and
argued in court that, as a result, no
agreement was constituted.
Cooper’s argument was upheld,
as Clark’s amendment to the offer
constituted a material alteration to
the contractual terms (contained
in the offer made by Cooper to
Clark). Such amendment in law
constitutes a conditional
acceptance or counter-offer and
required of Cooper to accept the
amendment in writing before an
agreement can come into
existence. This is due to the
requirement that there must be
consensus (agreement) between
parties to bring about a valid
agreement of sale, and it could not
be said that there was an
agreement if one of the parties did
not know of a (material) alteration
to the terms of the envisaged
agreement.
Agreements have many
particularities and potential
pitfalls. It is always prudent to have
an expert property attorney on
your side to make sure your
transaction runs smoothly all the
way, before pen is put to paper.
For assistance, contact us at
[e-mail]
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