Question posted in the Property Law category relating to Western Cape
Good day,
we (my father and I) are non SA citizens, living abroad and we wanted to buy a flat in Cape Town for vacation and AirBnB purposes. We were in contact with an estate agent last Sunday (May 12) for a unit in Fish Hoek. We signed an offer to purchase (OTP): as I don't live with my parents, my father sent me his signature, and I inserted it electronically in the OTP. I dit this after taking information with the estate agent that we could do it (I didn't know this wouldn't be legal but I was trusted the estate agent who seemed to know what to do). Because I dit it for my father, I dit the same for me. Regarding initials, I just added text on the document, i.e. this was not even an image/photo of our handwritten initials. The communication with the estate agent was only via WhatsApp and with feedback, not easy, because my father would give me the information he would get from the agent and I would do the same with those I would get. We were aware that we would buy it as it is without visiting the unit and we signed the Acknowledgement for that. We managed to send the document on Sunday, and we had feedback on Monday that the seller had accepted the offer and signed it as well. We were then contacted by the Attorney. It sent us a list of documents required to start the transfer process and banking information for the payment of the deposit. We were quite confused because we would had to open an account in SA (this was not our plan immediately), and had to pay via bank transfer (we intended to do it via Direct Currencies or equivalent). One of our request regarding this flat was that we wanted to operate it as AirBnB and according to the estate agent, the unit was doing well in that, though we didn't get details about it despite repeated requests from my father to the estate agent. From then we started to have strong doubt on the procedure, information we would get and so on, and we wanted to stop it. The Attorney started to threaten us with penalties, black listing ... After taking advise around us, we discovered that the OTP shouldn't be valid because we signed it electronically (for me this is really important, because the estate agent should have replied to my question about signature in the sense that we should have printed the document, signed it and scanned it back). I sent this information to the Attorney on Thursday, telling him that the contract shouldn't be valid and confirm we wanted to stop everything, and since then no response. I sent the OTP in PDF format and got a TIFF document with all signatures, though my father signature does not appear clearly, as if someone wanted to make this TIFF document appears as if everyone has signed in wet ink as the Alienation of Land Act, 1981 requires (since then I have looked at this on the internet). It is very difficult for us because the communication is unbalanced (the seller, the Attorney and the estate agent on one side, and my parents and I on the other side). How should we officialize the non-validity of the OTP, and the stop of the procedure with regard to that? Many thanks for your help and advice.
Regards, B.
Good day, is there any official document that I can send to the Attorney and/or estate agent to stop the procedure for defect of form? Thanks, regards, B.
Message from the Lawyer
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.
What our law allows two people to do is for person A to give person B a power of attorney to sign documents on their behalf. A power of attorney can be oral, or in writing. So, your father could easily have given you a power of attorney to sign the OTP on his behalf.
What you could have done was to "wet ink" sign the OTP on your father's behalf, in terms of an oral power of attorney. Then sign it for yourself, a second time.
The issue (as you correctly point out) is that you were digitally signing the document with your own signature for yourself and you were digitally signing it (just with his signature) on his behalf, BUT neither of these signatures are good enough for the Alienation of Land Act.
So, the OTP is invalid, null and void.
Have you send the seller's attorney anything to this effect?
Message from the client
Thanks for your response.
I sent the seller’s attorney an email telling him that the OTP shouldn’t be valid and asking him to confirm that the process was stopped, but he didn’t reply. What shall I do next if he doesn’t reply ? Shall I send again an email ? Being far away, it is difficult for us to know what to do. Thanks and kind regards, B.
Message from the client
Shall we report to a Court about our case ? Shall a lawyer assist us for that ? Thanks
B.