The need to properly & accurately describe immovable property in a deed of sale
20/12/2010

In the matter of Lombaard vs Droprop CC and Others, the Supreme Court of Appeal (SCA) was called on to adjudicate on the validity of an agreement of sale concluded when an option was exercised.

Briefly, the purchaser applied for an order compelling the sellers to transfer certain immovable property to him. The purchaser alleged that an agreement of sale had come into being pursuant to the exercise of an option to purchase, contained in an agreement of lease between him (as the lessee) and the seller (as the lessor).

Whilst the title deed of the property described the immovable property as “portion 526 (of 432)” of a farm, the lease described the property as “certain portion 526 of lot 432” of the same farm.

In an appeal to the SCA the court held that the primary meaning of the word “certain” was something definite, something prescribed, something determined, fixed or settled, and that it followed that the description in the lease was of a specified property, namely portion 526 of lot 432.

However, the mere fact that the description of the property in the lease, and consequently the agreement of sale, did not correspond precisely with the title deed description was of no consequence, just as the omission of the extent of the property, did not affect the matter, in the circumstances of this case.

The SCA held that the property was thus sufficiently described to render the agreement of sale concluded when the option was exercised, at least on the face of it, valid.

In casu, the purchaser failed on appeal as the court held that the description of the property was unambiguous and spoke for itself.

Clients are reminded to ensure that the description of properties which they wish to buy or sell is stipulated in unambiguous language to avoid a situation such as the one presented the purchaser in this matter. The Property Department of Adams & Adams is well equipped to assist clients in ensuring that the descriptions of such properties (to be bought or sold) are adequately and accurately stated in their agreements of sale.
Leander Opperman
Partner
leander-o@adamsadams.co.za