Real Estate Investor Magazine South Africa April/ May 2020 | Page 36

LEGAL
A dose for
smart
sellers
An imperative when selling property
REEVA WATSON
Conveyencers
Conveyancing is the legal process that takes place when
transferring ownership from one party to another.
A conveyancer, who is by trade a property specialist and
qualified attorney, is the best person to advise the Seller on
what he/she needs to do in order to get the most out of their
property purchasing transaction.
The Conveyancer is equipped with knowledge all the role
players in the industry and can assist you with advising on the
following, to name a few:
Working with Estate Agents or doing a Private Sale
Your mandate with the Estate Agent and the
implications thereof;
Any risks involved with the particular property if the
Seller has concerns;
Reviewing the agents Offer to Purchase to ensure that
your rights are properly protected before the Offer to
Purchase is even given to a potential purchaser;
Reviewing the Offer to Purchase received from a
purchaser before the seller signs it to make sure any
clauses added to the Offer to Purchase are clear and
unambiguous.
If a seller does not get the conveyancers input before
signing any of the above agreements, it is too late to get advice
later and could cost the seller severely.
“Propert ownership is only
obtained on registration
of the property, into the
purchaser’s name, in the
Deeds Registry Office.”
The offer to purchase
To sell a property, there must be an agreement in writing
between the parties that complies with the formal
requirements in terms of the laws that govern our country.
This agreement is the most important document in a property
transaction. It is usually called an Offer to Purchase or an
Agreement of Sale.
The Offer to Purchase (‘OTP’) contains all the rights and all
obligations of the parties to the transaction, it governs the
manner and timing of the transaction, it sets the foundation
for the transfer of ownership.
B
uying property, for some, is an achievement, and for
many in the sector it is a lucrative wealth making deal.
or millennials, buying property does not only mean
having a place to hide your head, but securing the lifetime
wealth goodie bag. Equally so, selling property might be a
day to day job for others while for some it is a stumbling
block to overcome.
Selling property is one of the largest single transactions
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APRIL/MAY 2020 SA Real Estate Investor Magazine
most people will undertake in their lifetime. Therefore, the
seller needs to ensure that they have the right property
professional team around them to get the best out of their sale.
The actual ownership of the property is not obtained on
signature of the offer to purchase or even on payment of
the purchase price. Property ownership is only obtained on
registration of the property, into the purchaser’s name, in the
Deeds Registry Office.
No one transaction is the same, so a generic document
cannot be applied to every transaction. It must be tailor made
to suit the property and the parties’ needs.
If someone needed a filling in their tooth, they would go to
a dentist to have it repaired. In the same way, sellers should go
to the specialists in property transactions to assist with selling
their home. These specialists are known as Conveyancers.
Any change in a single word, can affect the meaning and
application of the agreement between the parties. For an
example: An OTP stated the following, handwritten under the
special conditions:
“The Seller will provide an approved set of plans
incorporating store room/loft. (not subject to sale)”
“Selling property is one of the
largest single transactions
most people will undertake in
their lifetime.”
This clause appeared on the face of it to be fairly innocuous
however it turned out that the Parties thought something else:
The Purchaser believed that a suspensive condition is
the same as a Special Condition. In other words, that
the condition would suspend the transaction, and
they could walk away until the condition was fulfilled.
The Seller believed that all they had to do was produce
the plans, at some point and that it would not delay
registration of the property into the Purchaser’s name.
When it came down to the signing of the transfer
documents, the disparity in their understanding became clear.
The purchaser was obliged to sign their transfer documents
and proceed with the sale even though the plans could take
another 6 months to be approved. They were unable to put
down any offers on other properties as this transaction was still
binding.
The Seller found out that the wording of the particular
clause meant that it was a requirement for transfer of the
ownership of the property.
A poorly worded condition would end up delaying this
transaction by up to 6 months. This particular issue was
resolved quickly when the conveyancer drafted an amendment
to the OTP that protected both parties’ interests. However, the
whole issue could have been avoided if the conveyancer was
consulted before the OTP was signed by the Seller.
What happens when a clause inserted relates to finances,
guarantees and property descriptions? These happens more
often than one would think, right up to the point where the
agreement is void.
What most Sellers do not realise is that before they get
caught up in the process of preparing the home for sale
and sourcing an estate agent, they should appoint their
conveyancer to make sure that their rights and interests are
protected every step of the way. It is the single most important
thing a Seller can do when selling their home.
SOURCE Watson Attorneys
SA Real Estate Investor Magazine APRIL/MAY 2020
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