Let’ s look at the clauses one by one:
The Parties to the Agreement The conveyancers( a law firm qualified to complete transfers of immovable property) must be able to identify the seller and the purchaser.
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The conveyancers must check that the seller is in fact the registered owner of the property for sale or has the right to sell the property. If the seller is a juristic person i. e. a company or trust, the seller’ s representative must be legally authorised, in writing, to do so. The person signing the agreement must also have the contractual capacity to enter into the agreement on behalf of another person.
The details of the parties should include full names, identity and / or registration numbers, marital status, physical address, contact details, tax numbers and whether the parties are South African residents or not.
Description of the property This should include the erf number or sectional title scheme number and section number, the physical address of the property being sold, the extent of the property, the holding title deed of the property and other relevant details.
These details include the monthly rates / levy estimate, the name of the managing agents and the details of any homeowners’ association.
If the property is sectional title, the purchaser may want to obtain details of the body corporate finances and to know whether any special levies have been declared.
The Voetstoots Clause This clause means that a purchaser buys the property“ as is”. The seller is protected against a claim by the purchaser for patent defects in the property i. e. those that are clear and can be easily seen, such as a cracked tile. The seller cannot hide behind the voetstoots clause for latent defects those that are hidden.
If the seller is aware of a latent defect and deliberately conceals it with the intention to defraud the buyer, all voetstoots protection falls away and the purchaser can claim a reduction in the purchase price. Where the defect is material, the purchaser can apply to have the sale set aside.
The purchaser should insist, where an agent is involved in the sale of the property, on a copy of the Immovable Property Report, in which the seller states in writing if there are any defects in the property.
Purchase Price & Guarantees Unless agreed otherwise in the Agreement of Sale, the purchase price is payable in South African rand on transfer of the property in the deeds office into the name of the purchaser.
SA Real Estate Investor Magazine APRIL 2021 25