A deed of sale is a written agreement signed by both the Seller and Purchaser, in the presence of witnesses, for the sale and purchase of a property.
Once signed, it is a legally binding document that stipulates all the terms and conditions agreed upon between the Seller and Purchaser.
The following are some of the most common clauses found in the Deed of Sale.
The Seller and Purchaser must ensure that their full names, identity numbers, marital status and address’ are correctly reflected on the Deed of Sale.
If a party is married in community of property, their spouse’s details and signature will be required as well.
The full and proper description of the property should be reflected on the Deed of Sale.
In the instance of a conventional property, the erf number and physical address must be stipulated whereas, in the instance of a sectional title, the section number, exclusive use area(s), complex name and physical address must be stipulated.
The agreed purchase price must be recorded legibly and must be reflected both numerically and in words.
Where the Purchaser is required to pay a deposit, the value thereof must be reflected as well as the specified date of payment. The Deed of Sale should state that the deposit will be invested in the Conveyancer’s interest-bearing trust account for the benefit of the Purchaser.
The balance of the purchase price is the difference between the purchase price required and the deposit paid. This too must be paid before date of registration of the property. The balance of the purchase price is commonly secured by way of a cash guarantee or mortgage bond.
If your sale is subject to the Purchaser obtaining a mortgage bond, the bond amount and expiration date by which the bond must be approved by should be stipulated in the Deed of Sale. Failure to obtain the required bond approval within the stipulated timeframe may render the Deed of Sale null and void unless the Seller agrees, in writing, to amend the approval date. Purchasers must be mindful of expiration dates and inform the conveyancing attorneys as soon as they receive bond approval.
All parties must be aware as to whose account these costs will be for. Liability for costs can vary from contract to contract depending on what is agreed upon between the Seller and Purchaser.
Ordinarily, the Purchaser shall pay all transfer costs incurred in relation to the registration of the property including but not limited to:
The Seller on the other hand shall pay:
If applicable, Agents commission will also be for the Seller’s account. The Deed of Sale will either reflect the Agents commission as a lump sum or as a percentage and will also indicate whether or not VAT will be applicable.
This clause means that the Deed of Sale is suspended until the occurrence of a future event(s).
If, for example, the sale is subject to the Purchaser selling his/her property, the description of the property, the sale price and date by which it must be sold must be indicated.
If, for example, the sale is subject to the Purchaser obtaining bond approval, the Deed of Sale must indicate the bond amount being applied for as well as the time frame in which it should be obtained. It is only upon fulfilment of the suspensive conditions that the sale will commence.
In this clause, the parties agree that possession (of the property) and vacant occupation thereof shall be given to the Purchaser upon transfer.
However, there are many instances where the Purchaser wishes to take occupation prior to the date of transfer. If this is the case, then occupational interest at a rate agreed upon between the parties must be reflected in the Deed of Sale.
Generally, the occupational interest will be payable per month to the Seller or to the transferring attorneys, on the first day of each and every month until registration of transfer.
Where the Seller remains in the property after registration of transfer, the Deed of Sale should then reflect that the Seller shall be liable to pay the said occupational interest as well as charges for water and electricity consumed, up until the date the Seller vacates the property.
If you are purchasing a property “voetstoots” you are purchasing the property as it stands and as described in the existing title deed subject to all conditions and servitudes attached.
Purchasers must ensure that they are satisfied with the property as it stands upon signature of the Deed of Sale. A thorough inspection and viewing of the property should also be done prior to signing the Deed of Sale.
The Water, Electrical and Beetle compliance certificates are compulsory in every transaction however, where applicable, a Seller may also have to provide a Gas and/ Electrical fence certificate of compliance.
These certificates are required as to ensure that the property meets the minimum requirements of the local municipality as well as the safety and compliance requirements of all other applicable regulations.
The transfer cannot be registered without the required certificates of compliance. The inspections fees and costs for issuing the certificates are generally for the account of the Seller unless the parties agree otherwise.
A breach of the Deed of Sale would exist where either of the Parties fail to fulfil their obligations in terms of the Deed of Sale. It is crucial for all parties to know and understand their responsibilities in terms of the Deed of Sale as well as the consequences of failure thereof.
The transfer process is based on what is agreed upon between all parties, therefore making the Deed of Sale core to any property transfer.
Considering the above, it is imperative that both the Sellers and Purchasers thoroughly examine the Deed of Sale first before signing it.
It is also important for Sellers and Purchasers to remember that upon signature thereof, the Deed of Sale becomes a legally binding contract between all parties involved.
Our Conveyancing and Property Law Department provides specialized services covering both commercial and residential property.
Contact our conveyancing attorneys in Cape Town for assistance with the drafting of sale agreements and property transfers.
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