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I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
 
Please visit our website at www.prop-law.co.za for more details.
 
I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.

I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
 
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.

28 February 2014

Unmet deadlines render an agreement of sale void

Unmet deadlines render an agreement of sale void

Property buyers should take care to ensure that they are aware of all dates and deadlines for bank guarantees and bond approvals, because missing such deadlines can result in the agreement of sale being rendered null and void.

'First-time buyers are particularly at risk, as they might not be aware of the seriousness of not meeting suspensive conditions as stipulated in an agreement of sale,' says Mike Greeff, the chief executive of Greeff Properties, an affiliate of Christie's International Real Estate.

Greeff was commenting on a recent case in which the court found that a lapsed suspensive condition rendered an agreement void. And even subsequent conduct by a seller, accepting a late and/or erroneous proof of available funds rather than a guarantee, cannot revive a sale agreement.

'It is a good idea for buyers to make a checklist of all the tasks and points requiring attention in the weeks following the signing of an agreement of sale,' he says.

These requirements usually include a deposit of a stipulated percentage of the purchase price, bond approval and/or a bank guarantee for the remainder of the purchase price.

'Buyers s hould always check with their conveyancing attorneys what the exact wording and content of the bank guarantee requires. A letter stating that there are sufficient funds available in the buyer's account is not acceptable where the agreement requires a guarantee to be provided.

'A bank guarantee must stipulate that the required sum (the balance of the purchase price) will be paid to the seller either on a date stipulated in the agreement of sale, or following certain conditions with which the seller must comply,' says Greeff.

Martin Sheard of STBB Attorneys says: 'If a deadline has passed and a suspensive condition has gone unmet, this renders an agreement of sale null and void. However, there is a solution, as the parties can agree to enter into a new agreement of sale essentially on the same terms and conditions of the lapsed agreement.

'The new agreement of sale can be a one-page document attached to the lapsed sale in which the parties state that there have been unmet suspensive conditions due to missed deadlines, and that both seller and buyer agree to new dates by which the suspensive conditions are to be met.

'It must also be stated that the seller sells to the buyer the property in question on the same terms and conditions as contained in the original agreement of sale and annexures thereto. Both parties then sign and a new agreement of sale is constituted on similar terms as the lapsed agreement.'

Weekend Argus (Saturday Edition)


I hope that the readers of this Blog will indulge me as I mount my old hobby-horse again.  As a friend of mine would say: "Gareth is pontificating about (-insert topic here-) again."

Why don't Buyers and Sellers consult their own attorneys BEFORE signing Offers to Purchase / Agreements of Sale???

You would be entitled to say that I am merely trying to create more business for property attorneys and I can't deny that I would benefit.  HOWEVER ... please consider the fact that buying or selling a property will be the single biggest investment that the vast majority of home owners will make in their life.  People go to lawyers for many reasons, most of which will be (with respect) far more trivial than buying/selling property.  Nevertheless, most buyers simply sign whatever documents the Agent puts in front of them, regardless of whether it is the most suitable instrument for their specific purposes.

A small investment in expertise at the outset may save you an enormous amount as the process unfolds.

Gareth Shepperson
Commercial and Property Attorney







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