Written for Property Poser
This week’s query for our Property Poser experts comes from a reader who concluded an offer to purchase on a property with an elderly couple.
For reasons not disclosed, the sellers then expressed their wish to cancel the deal. It is not clear what steps were taken in this regard but the reader says he refused to accept the cancellation.
It appears that he wishes to enforce the terms of the contract. The lady in question has, during this process, suffered a brain haemorrhage and the reader is afraid that the courts will be sympathetic to this and deny his claim.
A contract for the alienation of fixed property must be in writing, says Susan Chapman from Rawson Properties Port Elizabeth Platinum. “The contract usually makes provision for the circumstances under which a party may claim cancellation, with or without damages.”
Chapman says cancellation is most often referenced as a remedy when the other party breaches an agreement.
“For example, not taking steps to see to the transfer, as the case may be here, may constitute breach. The purchaser would then have to place the sellers on terms to perform, failing which he could exercise his right to cancel.”
Another remedy is that of specific performance, says Chapman. “If successfully enforced, it forces compliance with the terms of the contract by the breaching party.”
Chapman says the reader is not clear as to whether the sellers took any steps to cancel the agreement but the mere fact that he could refuse to accept it suggests that it was not formally effected.
“It’s also not clear which stage of the process they’re at, as the reader mentioned the offer to purchase and further ‘contracts’ that were signed.”
It is possible that these further documents are those required to effect transfer, in which case the purchaser should seek independent legal advice to enforce the contract, says Chapman.
“This is because the conveyancer is usually appointed by the seller and may only take instruction from the client. The conveyancer also has a responsibility to advise clients of possible repercussions should they not wish to proceed.”
According to Stiaan Jonker of Smith Tabata Attorneys in PE, the mental state of the female seller may be relevant, provided she is a participant in the selling process.
“Firstly, she may not have had the required mental capacity to conclude the agreement in the first place due to her impending illness, although evidence may be required to determine the matter.” If this is the case, Jonker says the sale may not be enforceable against her.
“Secondly, assuming she fell ill after the sale agreement was entered into, but before the transfer documentation was signed, it would effectively stall the transfer.”
From the reader’s input, it seems that the latter is applicable, leading him to want to claim specific performance, says Jonker. “With regard to his fear of being unfairly prejudiced, our courts are bound by certain rules and precedents.”
Jonker says the conclusion of the contract is the embodiment of the seller’s intention to sell and the reciprocal obligation to buy on the purchaser.
“Contracts are there to provide certainty and to be abided by. Our courts do not take the conclusion of a contract lightly, nor the required performance.”
Save any breach of the agreement by the reader, there should be no reason for the cancellation to be effected, says Jonker. “It would appear that the contract should be upheld and performance in terms of the agreement enforced.”
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On behalf of:
Rawson Properties PE Platinum & Smith Tabata Attorneys