Sale of land & failure to comply with ALA
 Briefly, this provision provides that no sale of land will be of any force or effect unless it is contained in a Deed of Sale signed by the parties thereto or their agents acting on their written authority. In a recent matter heard in the Supreme Court of Appeal (“SCA”), the court had yet another opportunity to interpret this section. Briefly the facts were that a husband and wife team of property developers had entered into a written agreement with a buyer for the sale of immovable property in Balito, KwaZulu-Natal. A dispute arose from a clause in the special conditions of this contract which provided that the parties would conclude a written agreement regarding the purchase price details before a certain date in future. The problem was that no such written agreement was ever concluded. The buyer paid the purchase price and requested transfer of the property into her name. She was then informed that the sellers were challenging the validity of the contract on the ground that the written document did not stipulate, in writing, the method of payment. The buyer applied to the High Court or an order declaring the agreement enforceable and her application was granted with costs. On appeal the SCA reversed the judgment of the court of first instance and stated that the time within which payment was to be made was a material term of the agreement. The failure to actually reduce the agreement in this regard to writing resulted in an agreement still having to be reached in respect of the time for payment. As the provisions of Section 2(1) were not complied with, the agreement was unenforceable. Clients are requested to take special care when concluding agreements of sale for land which contain so-called “agreements to agree on a particular term in future”. It may well be that such a term may be a material term and the failure to have agreed upon such term and conditions relating thereto may result in the agreement later being declared unenforceable. Leander Opperman Partner leander-o@adamsadams.co.za |
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| 10/07/2011 | ||
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The firm practises directly in several Southern African countries and through long-established associates in others.
