Asked by Khabazela1 on 05-04-2017 11:32:39
Question posted in the Property Law category relating to Gauteng

Hi,

My fiance and I signed an offer to purchase document on Monday. On Tuesday a property we were waiting for for months became available. I urgently messaged and emailed the agent to inform her. Today the agent has got back to me saying that the offer was accepted and that it is leagally binding on us. During this process the agent has not sent me anything in writing stating that my offer was accepted rather the communication is from myself to then informing them of the intention to cancel  the offer. What are my leagal grounds and how can I get out of this? Am I protected?

Regards

Worried and homeless

Further information relating to Question:

I have also asked the Agent for my documents, they haven't given me a copy and are now seemingly evading me.

In addition, the agent only communicated the accepted offer after i had informed her that we no longer wish to make the offer. What does the law say about the sequence of events?

Posted by Att. Patrick on 05-04-2017 23:39:03

Hi there and thank you for your question,

To put it plainly, if there is a clause in the offer to purchase (OTP) which states that the offer is "irrevocable" until a certain time, then you can't withdraw the offer before that time. It basically gives the seller a guaranteed window within which to accept or reject your offer.

If there is NO "irrevocable" clause in the OTP, then you would be entitled to withdraw your offer whenever you wanted. You would do this through communication to the estate agent - who in law, is deemed to be the seller of the property. So, giving the notice of withdrawal to the agent is good enough.

In my opinion, the answer lies in the exact wording of your OTP. Can you check that for me?

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Hi Patrick,

At the time that we completed the OTP, the agent had not filled in the date on when the offer expires and therefore in my view it was still revocable, they have since amended it to expire on the day after we rejected the offer so as to make it seem like my revoking of the offer was invalid- Both my fiance and I saw this blank space and in fact at the time the agent laughed it off. Furthermore on the OTP we have initialed on all key matters, but because this was not filled in at the time of the offer our initials are not there- they have deviously inserted it after we revoked the offer. We have not initialed to show we agree with the amendment. I feel like these guys are now doing illegal and fraudulent activities.

Had we agreed to an expiration date on a property we want we certainly would not have given the seller two days for feedback- that is unreasonable.

By the way thank you for your help. Also, these guys failed to give us a copy of the documentation prior to getting a signature from the owner- this makes it hard for us to prove that they inserted the expiration date afterwards. Both my fiance and I know that this is what they did- we it is the only clause in the whole contract we haven't signed next to and it is such an important one.

Posted by Att. Patrick on 06-04-2017 16:36:15

Hi again,

If you never filled in that blank space (i.e. the date on which your offer would lapse) then the default position is that your offer stands as a valid offer until such time as you revoke it, or it is accepted.

If you therefore revoke the offer prior to it being accepted, that is the end of the matter. The offer is no longer capable of being accepted by the seller, and if he tries to accept it, his actions amount to nothing.

The offer to purchase is null and void.

Explain this to the agent and explain that the agent is complicit in this because of his actions. You might want to threaten to lay a complaint against the agent with the Estate Agency Affairs Board and they will investigate his conduct and discipline him!

What they have done borders on illegal, and definitely fraudulent.

BUT, you must remember that since you withdrew the offer, there is legally no offer standing at the moment.

Ultimately this might have to be determined in a court of law - but until then, I would say that you hire an attorney to write a letter to the agent and the conveyancing attorneys to set out your position in the matter!

Thank you very much Patrick for your advice. I certainly will make use of it. Do you have anyone you might recommend to me? My number is 0716003055

Posted by Att. Patrick on 06-04-2017 18:23:09

Hi again,

I am afraid that we are not allowed to refer you to any specific attorney because of the website policy, but I can suggest that you can locate a suitably qualified attorney in your area who will be able to assist you with your query at Find a Law Firm specialising in Property Law in South Africa.

Good luck! 

Thank you!

Hi Patrick thank you so much for your advise! The agent has come back stating that the case is closed and they will pursue it no further! Best R250 I've spent in ages!