- This is the first post dealing with typical clauses. We suggest you read the content of the 7 golden rules before you read the content of the typical clauses.
- The parties are usually the buyer, the seller and perhaps an agent negotiating the agreement between the two.
- Make sure that the seller is the registered owner or find out why he has the right to sell.
- Make sure that the seller has the capacity and right to sell the property:
- if a private person, check if the seller is married in community of property or by the laws of an country which is not South Africa, in which case it is safer or perhaps necessary to have the spouse of the seller also sign the agreement.
- check that the signatories are not younger than 18 years old;
- if a company or a close corporation or a trust, make sure a resolution has been signed authorising the sale. You may want some legal help with this.
- What about the question about who should buy? Should it be in your personal capacity, or your company or CC or trust? There is no answer that fits all. For this we suggest you take advice. The implications are important including for:
- tax
- estate planning
- ongoing administration costs
- protection against creditors
- non-resident ownership considerations given that there are indications that there may be limitations imposed on the rights of non-residents to own certain property in South Africa
- protection against expropriation.
- Once the agreement is signed, the name of the eventual owner can’t be changed without some risk, agreement by all parties and a lot of trouble, so make sure the offer is made in the right name.
Contact us if we can help.
