Hi I have purchased a house but the deal...

Asked by PrestonC on 18-08-2021 14:36:19
Question posted in the Property Law category relating to KwaZulu-Natal

Hi 

I have purchased a house but the deal has not gone through yet. The estate agent failed to disclose to me and on the OTP that the property for sale is an Estate late sale and now we awaiting for an endorsed POA from the master for the transfer to go through. Its been 9 months now and we are still waiting for the endorsed POA. Now the seller has requested her intention to cancel the sale agreement.

1. I have paid a deposit and the transfer attorney's cost to the transfer attorney.

2. I have said to the transfer attorney that I wish to accept the sellers cancellation but they've advised me that:

2.1. The seller has requested to cancel the deal. If you agree to accept her cancellation, then we have a cancellation by mutual agreement which renders you jointly and severally liable for commission and costs.

2.2. If the seller were in breach of an obligation it would be a different story, but right now we are awaiting the Master’s approvals, not being delayed by seller.

3. Can I cancel this agreement as info was withheld in terms of the deceased estate.

4. How can I legally get all my money back from the transfer attorney as I am not in breach of any contract.

Regards,

Preston

Information Requested by Lawyer

Posted by Att. Patrick on 18-08-2021 15:16:55

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 18-08-2021 15:23:48

The seller (who I assume is the executor of the estate late) can only cancel the sale if you have breached the terms of the sale agreement AND they have given you an opportunity to remedy the breach AND you have failed to do so.

From what you’ve said, there is no breach that you’ve committed.

Also, as you correctly point out, there is no breach that the seller has committed.

If part of this request to cancel the deal involves you contributing towards the commission and costs (i.e. you need to get your FULL deposit and transferring attorneys costs back) then you must tell them that you won’t agree to that.

BUT, if the seller agrees to cover all of the commission and costs himself, and agrees that you can get your FULL deposit and transferring attorneys costs back, then you will be happy with that proposal.

I don’t know why you should accept any liability towards the commission and costs if you don’t really want to cancel the agreement.

Surely on the OTP you would have seen that the executor’s name was mentioned? Or at least there was mentioned that the seller was an estate late? Whose name was listed as the seller?

I’m asking this because if the executor never had the Master’s permission to sell the property, then the OTP might be void. You would then be entitled to get all of your money back.

But you will need to ask questions, and get a copy of the OTP to read carefully, and ask for copies of the POA and understand exactly what they are waiting for from the Master.

Information provided by client

Information provided by client

Hi

1.The seller has not breached the agreement as well, but she is very sure that she no longer wishes to sell the house and wants out of the agreement.
2.The Transfer attorney is awaiting the endorsed POA from the master to transfer the property. According to the attorney's, because this is an Estate Late sale, they need an endorsed POA from the master in order to proceed with the transfer.
3.I am buyer, therefore I have the OTP and it does not state anywhere that this is a deceased estate nor did the estate agent tell me that this was a estate late sale. I only came to know about this is when the transfer attorney called me to sign some forms. That's when I found out.
4.I have not breached the agreement but I am consenting to her wanting to cancel the sale as I cannot wait any longer and if the sale goes through and if she doesn't move out then I have another problem on my hands.
5.The transfer attorney has said to me that if I accept the cancellation then its a "cancellation by mutual agreement which renders me jointly and severally liable for commission and costs.
6.The estate agent has said that "The fact that you are not the party cancelling, but just consenting to the cancellation, will free you from a commission claim"
7.All the seller has said is that she no longer wishes to sell the house and that's it.
8.The transfer attorney has my deposit, transfer duty and all his transfer costs which I need to recover.
9.I have sent the transfer attorney an email this morning asking him to give a breakdown of what costs I am liable for in order to possibly settle and get the rest of my money back.

Regards, Preston

Information provided by client

Hi,

The deceased's wife is executor and her name was only on the OTP, but again no mention that the estate m

Answer to the Question

Posted by Att. Patrick on 19-08-2021 11:58:11

So the wife, as the executrix, could have signed the OTP using her name. She would have been signing "in her capacity as the executrix of the estate", which is okay. 

"The transfer attorney has said to me that if I accept the cancellation then its a "cancellation by mutual agreement which renders me jointly and severally liable for commission and costs." --> I've explained this above. If part of this request to cancel the deal involves you contributing towards the commission and costs (i.e. you need to get your FULL deposit and transferring attorneys costs back) then you must tell them that you won’t agree to that. BUT, if the seller agrees to cover all of the commission and costs himself, and agrees that you can get your FULL deposit and transferring attorneys costs back, then you will be happy with that proposal. I don’t know why you should accept any liability towards the commission and costs if you don’t really want to cancel the agreement.

"6.The estate agent has said that "The fact that you are not the party cancelling, but just consenting to the cancellation, will free you from a commission claim"" --> Yes. Exactly.

"The transfer attorney has my deposit, transfer duty and all his transfer costs which I need to recover." --> You need to get EVERYTHING BACK, plus interest.

"9.I have sent the transfer attorney an email this morning asking him to give a breakdown of what costs I am liable for in order to possibly settle and get the rest of my money back." --> You should NOT be liable for ANY costs. You need ALL of your money back. You never cancelled the sale. You never breached the sale. You are an innocent party to the cancellation. The seller needs to pay for any wasted costs. Not you! 

Information provided by client

Hi
Apologies for the late reply.

1.I just want to know what are my options here?
1.1 How do I get my money back?
1.2 Do I need to get an attorney to recover my money?
2.What happens if they(attorney's and estate agent) still want to go-ahead with sale and they need the seller to sign more forms and if she doesn't want to sign? What happens in this case?
3.If the sale goes through and then the seller refuses to move out of the house? I have explained this to the attorney and the estate agent that I can't afford to rent and pay the bond for someone else to live there.
4.I have posed the above questions to the transfer attorney but they still have not come back to me with answers.

I have no idea what to do now and how to proceed further. I can foresee a lot of issues further down the line and more wasted time and me having to wait for a long time for this deal to actually conclude and then for me to move in, hence I want to accept her cancellation and recover my money and look for another house, hence the reason I was willing pay some of the transfer attorneys costs.

Answer to the Question

Posted by Att. Patrick on 20-08-2021 15:12:40

I really do think that I've explained your question 1 above. You need to demand it back from the conveyancing attorney.

attorney's and estate agent don't have a say in the matter. It is you and the seller who have the say. If the seller refuses to sign more forms, then you can apply to court to force the seller to sign. The estate agent could as well. But the attorney could not.

If the sale goes through and then the seller refuses to move out of the house?  --> then you would need to evict the seller through the court system - which could take 12 months.

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