Asked by the Customer on 09-12-2017 03:44:30
Question posted in the Property Law category relating to Gauteng

Hi, have recently entered into sale agreement of my property. Purchasres attorneys have informed a deposit has now been paid they and have received my title deeds from my previous conveyencers who had kept my title deeds. Purchasers attorneys now await for me to sign transfers papers which I am nolonger will to sell. Is there a way out of this? 

Posted by Att. Patrick on 09-12-2017 09:45:00

Hi there and thank you for your question,

My first question is why you agreed to allow the Purchaser's lawyers to pass transfer of the property? You should ALWAYS use your own lawyer to pass transfer. That is because they are protecting YOUR interests, in that they will only pass transfer IF the Purchaser does everything that he is meant to do, including paying the purchase price. 

How do you know that this lawyer will ensure that you are protected? How can you be sure that you're not involved in some sort of SCAM?

Ask the conveyancing attorney for a copy of his Fidelity Fund certificate. Also, ask him for a copy of the proof of payment of the deposit, and proof (bank statement) from his trust banking account proving that the deposit it actually sitting in his trust banking account. 

If there is a SCAM, then you can easily get out of the deal.

But, if everything is above board, then you will need to carefully look at the sale agreement to see if there is a way to get out of the sale. You'll need to check each obligation in the sale agreement to see if it has been complied with. If the purchaser has breached the sale agreement, then you can cancel it.

If the purchaser however has complied with everything, then you won't be legally allowed to cancel the agreement. 

If you want to cancel it, then the purchaser will be allowed to approach Court to order you to sell the property to him. Basically, it depends on how much the purchaser wants your property. Will he approach court? Will he spend the money on lawyer's fees? Or will he simply take his deposit back and go away?

It's very difficult to answer. 

But, the reality is that there might not be a legal way for you to get out of the sale agreement. 

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,

Thanks for reply, trouble is I am a British national living in London UK & LA, California in the USA, am only in SA for short breaks and eyeing for future business prospects. The agent I am dealing with is Rawson Properties considered reputable. Rawson were quick to inform I should start receiving correspondence from their client liaison attorneys as the seller to which they asked if I was happy to proceed with their preferred attorneys. My initial response was to ask who they were, how reliable they were, was given their name (Savage Hurter Louw Inc,) and assured they were reliable and that they have worked with them before, I did look them up and accepted. You are right normally I should have nominated my own lawyers to pass transfer to ensure my interests were looked after.

I instructed my previous conveyancer (Tim Du Toit Attorneys of Jhb) who had kept my title deeds for safe keeping when I bought the property to hand over my title deeds to Rawson Properties client liaison lawyers Savage Hurter Louw for transfer. My question is does this give the transfer attorneys power to go ahead with the sale without the following documents signed by me as seller: Transfer Documents, Power of Attorney to Pass Transfer (Since I am not in SA), Personal Affidavit, Affidavit by me (Seller), Special Power of Attorney (Notarial Deed), Notarial Deed and Instruction to register Transfer (since they will need my bank account). I know I have complicated someone else's life and acknowledge my mistakes. Bottom line is I no longer want to sell but I am prepared to compensate purchaser and all involved at whatever cost. I will not be signing Transfer Documents nor provide all needed documents to finalise sale. What should be my next step? If there is a lawyer you recommend, kindly advise and refer.

Thank you.

William Reed-King

Posted by Att. Patrick on 10-12-2017 10:04:44

Hi there, 

Rawsons are reputable. If you are using their suggested conveyancing attorney, you should be fine. No guarantees, but you should be fine. 

If refuse to proceed with the sale and sign all of the documents, the next thing that will happen is that the purchaser's attorney will send you a letter of demand REQUIRING you to sign them and pass transfer. 

You might need to advise your attorneys (Savage) that you no longer want to proceed with the sale. 

You could ask them to write to the purchaser to advise them of this, and offer compensation. The attorneys will have cancellation fees which will need to be paid. I'm sure that the agent would be looking for his commission. 

If the purchaser agrees to "let you off the hook", you'd pay the various costs and that would be the end of it. 

Att Patrick,

Just as you predicted cost of cancelling is quite high, in total R116 444.27 when split it's R21 187.71 wasted costs and R95 256.56 agent commission.

My final question is can I reach a settlement say paying half the sum for the agent due to the following.

When the 1st Rawson sales agent (Rashida Anath) began selling for me we signed a 3 months sole mandate but did not sell within the agreed 3 months so we had to sign another. During the 2nd mandate she informed me she had left Rawson but she would continue to market my property still under Rawson but I should not tell Rawson which made me uncomfortable. Later on that time she got an offer to purchase but I became reluctant to sign the offer as I felt I could be at risk should anything happen as she was no longer with Rawson and that Rawson never got back to update me about their employee only until at a very late stage that I got an email from Rawson explaining that the employee whom I was dealing with (Rashida Anath) had left Rawson and that they have an offer for my property and a new Rawson employee (Melaine Fayard) introduced herself with whom I later signed Offer to Purchase with. If property was sold outside the agreed mandate time.

Can I use the following to reduce agent commission;

1) The confusion from the 1st Rawson agent,
2) Sale of property outside agreed mandate time, and
3) There was no new mandate signed with new Rawson employee who took over sale.

If so can I use these facts to ask for an amicable figure as settlement? are you allowed to represent me or refer a reputable attorney to represent me on this? If it cannot be done its okay will opt to pay total amount quoted and reverse sale, but off course settling for a lesser amount with agent will be of great help.

Thank you.

Kind egards,

William Reed-King

Posted by Att. Patrick on 18-12-2017 20:24:38

Yes, you can indeed negotiate a settlement of the cancellation fees ... but I don't know how much success you will have. If you've paid a deposit, the agent will simply refuse to release the deposit back to you. Your chances of reaching a settlement might therefore be poor.

If you haven't paid a deposit, then they will need to issue a summons, so your chances of reaching a settlement might be quite good. i.e. receive 50% now, so fight a court case and receive 100% - possibly.

In my opinion, your actions of signing the OTP which was presented to you negates any argument that Rawsons should not be entitled to their commission - simply because your actions "accept" that you were happy to sell after the mandate period expired. 

I'm afraid that I can't represent you directly, and I can't refer you to a specific attorney, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified attorneys in your area who will be able to assist you further! You can select "litigation" lawyers or a list of lawyers in your immediate area!

Please accept my answers above?!

Patrick,

I cannot accept your answer, seems you have not entirely misunderstood my question. I am not the buyer in this instance rather I am the seller and do not understand why you even suggest I paid a deposit.

Regards,

William Reed-King

Posted by Att. Patrick on 02-01-2018 14:17:14

Hi there and thank you for your question,

I'm sorry... please ignore what I said about the deposit. I was helping other people at the same time with their questions. My comments on the deposit doesn't apply to you.

The only thing that you need to deal with is your estate agent, and his commission. Because he "sold" your property, he will be legally entitled to claim the commission from you.