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Questions and answers for your Property, Contracts and the law, get actions to avoid the legal Pitfalls part 1
By arlene | November 4, 2008
Regardless of how cautiously you enter into any property deal, how carefully you proceed, and how certain you are that all will go according to plan, costly and worrying hitches can develop.
What it comes down to is that the signed agreement between two parties, whether it concerns a lease or an Offer to Purchase, or a Deed of Sale agreement, and whether it applies to transfer of title deed, sectional title or block share, becomes a legal contract, the mutually agreed and binding terms of which are enforceable in the courts.
The first thing to make certain of is that all agreements pertaining to the deal are in writing and that the writing says what you mean it to.
We are concerned here with immovable property; that is, land with or without buildings on it, or in the case of sectional title buildings only. Ownership of the property must be registered in a Deeds Registry and it is this registration which a clearly made out Deed of Sale is intended to facilitate.
Here we tackle in question and answer form many of the predicaments and considerations that could crop up in even the most straightforward deal.
Question: How should I handle dealings for the sale of my property with an estate agent?
Answer: Set down the specifics of the sale in written form so that there will be no confusion over price, commission, advertising costs, and the time the property is expected to remain on the market. Remember that an agent is legally defined as a person negotiating on behalf of another and the agent’s commission is not dependent on the sale going through to registration of transfer, but only on introducing a buyer who is prepared and able to meet the terms of the contract as laid down by the seller to the agent.
Question: What is the difference between an Offer to Purchase and a Deed of Sale?
Answer: Initially the former is merely an offer to buy a property but it effectively becomes the latter once it is accepted and signed by both parties.
Question: Once I have signed an Offer to Purchase is there any way I can get out of the deal without too much of a financial loss?
Answer: Probably not unless you’re very, very lucky. In terms of most contracts you could be called on to pay the full amount, face a claim for damages, or lose the 10 percent deposit paid on the property if you simply change your mind about it after having made a valid offer. The estate agent would also be entitled to demand the normal commission for the sale.
Question: When does the Offer to Purchase document become legally binding?
Answer: As soon as it is signed by both parties to the contract, but for the sale to take place the suspensive clauses, such as the granting of a bond, must be satisfied.
Question: Must I engage the services of an attorney before considering buying a house?
Answer: No. But it is a good idea to let an attorney see the Offer to Purchase document before you sign it since it is likely to become a legally binding document, relating to what is generally regarded as the most important material acquisition of your life.
Question: Can both buyer and seller use the same attorney?
Answer: Yes, and this does occur. Very often that attorney is experienced in the minor disputes that can and do arise in a property sale and can settle them quickly. However, if a major dispute arises which cannot be settled simply, the attorney must withdraw and new attorneys be appointed.
Question: What happens if the seller goes insolvent before a property is transferred to the buyer?
Answer: The trustee of the insolvent estate may or may not decide to go ahead with the transfer. In the latter event the would-be buyer may claim damages from the estate, but this claim would simply rank with those of other creditors and the property would be lost.
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Topics: Agent, Contract, Form, Land, Market, Property, Sale | 3 Comments »
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sold my home, but was abanded, how do I get it back, in my name? deeded to buyer?