In a property sale, the signed offer to purchase is the contract. If it does not meet the formal rules, the sale can be void, however clearly the parties agreed.
What the law requires
Section 2(1) of the Alienation of Land Act 68 of 1981 says that a sale of land has no force or effect unless it is contained in a deed of alienation signed by both parties, or by agents acting on their written authority.
Complete it before you sign
The Supreme Court of Appeal has dealt with offers that were signed before they were finished.
In Fraser v Viljoen [2008] ZASCA 24, the court held that all material terms must be in the document when it is delivered to the other party for signature. Terms filled in afterwards did not cure the defect, even where the seller had orally authorised the buyers to complete the document. The property description and the purchasers’ names were missing when the document was delivered, so the agreement was void.
In Just Names Properties 11 CC v Fourie [2007] ZASCA 126, the purchaser signed while the document was still incomplete. The court held the sale invalid, because a signature must show agreement to the finished written offer. Completing the pages later, even to reflect what the parties intended, could not cure the defect.
What to do
- Check that the parties, the property description, the price and every other material term are filled in before anyone signs.
- Do not sign blank or part-completed pages, and do not let anyone fill them in later.
- If someone signs for you, make sure they hold your written authority.
- Have your conveyancer read the offer before you sign it.
If a sale has already been signed with gaps, get advice before you act on it.
This article is general information and is not legal advice. The law may have changed since it was published, and every matter turns on its own facts. Contact us about your own situation.