Written for Property Poser
The Property Poser experts this week assist a reader with a query regarding the concept of half-shares in an agricultural property he recently purchased.
The property, which includes a dwelling, consists of a number of different holdings or parcels of land combined under a single title deed.
The reader’s question relates specifically to the description of one of the parcels, which is described as constituting a “half-share”. On inspection of the transfer documentation, the half-share became evident.
It seems that he thought he was purchasing a certain number of hectares and is now concerned about how the half-share aspect will affect this.
Schalk van der Merwe from Rawson Properties Helderberg in Cape Town says it appears that this was the first time the reader learned of the shared ownership of the one parcel.
“Being agricultural, the land is measured in hectares. Considering that one hectare is equal to 10 000 square metres, it quickly becomes evident that small differences in the number of hectares add up to large tracts of land.”
Van der Merwe says it would be useful for the reader to read a copy of the agreement of sale.
“The description of the land sold and purchased should coincide with the description of the land described in the transfer documentation.”
More importantly, the amount of land attached to each parcel should be the same as the amount of land the seller and the purchaser agreed upon, says Van der Merwe.
“The half-share reference would typically refer to an already divided parcel but where the holding description itself hasn’t been altered to reflect that one portion has been separated from the adjoining piece.”
Van der Merwe says, unless otherwise agreed, it would be a nonsensical arrangement to have a half-share in one of the parcels of land.
“It would give rise to major issues between the joint owners, even though in this instance it wouldn’t typically constitute an undivided half-share as one encounters when two parties jointly own a single property.”
According to Sean Radue of Radue Attorneys in Port Elizabeth, the reader would have to carefully consider his rights in this instance and determine the true nature of the problem and where the deviation in the description arose.
“We don’t have the benefit of seeing the agreement of sale which would, in all likelihood, have included a description of some sort of the land.”
Radue says the description of the object purchased in such a transaction is important and is considered an essential term of a contract in that it must be clear what exactly the purchaser is receiving for his money.
“The agreement on the object forms part of the parties’ consensus. In a potential dispute such as this, the circumstances giving rise to the transaction are vital in determining the available remedies.”
Radue says the extent of the property may have been innocently or fraudulently misrepresented by the seller.
“Or it may just have been a misunderstanding on the part of the purchaser.”
After consulting the agreement of sale, the reader’s remedy may include a reduction in the purchase price or the potential cancellation of the whole deal, depending on what is found, says Radue.
“The Consumer Protection Act may, in certain instances, be applicable and the remedies available under the Act will thus also apply in such a case.”
Radue says the reader should consult an attorney to discuss the details of his case.
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