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How to buy a home – put it in writing

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How much do you really know about the home buying process? Sure, house hunting is fun and playing with online calculators does give you an idea of how much house you can afford. But what should you know before you even sign an offer to purchase?

Our friends at MC van der Berg Attorneys have kindly allowed us to republish their MC Purchasers Guide to help educate new and seasoned buyers on the legal ins and outs of home buying.


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2 Before you make an offer to purchase

The offer to purchase which you, as the purchaser, are going to make will become the deed of sale once it is accepted in writing by the seller. The deed of sale and legislation create the rules applicable to the transferring attorney when your property is transferred.

It is very important to take note of certain key aspects contained in this guide and to scrutinise the estate agent’s pro forma agreement before you make an offer to purchase. Rather be safe than sorry.

Rules of the game – the deed of salejenga

The deed of sale is the instruction and mandate given by the parties to the transferring attorney and we cannot deviate from it. Apart from scrutinising the offer before you accept it, there are two aspects to which we would like to draw your attention.

Pro forma offers to purchase introduced to you by various estate agents will generally contain a clause which stipulates that the deed of sale will constitute the complete and only agreement between the seller and the purchaser.

You should therefore not accept or give any verbal undertakings as it will be unenforceable. Make sure that all the terms of the agreement are in writing and are signed.

Pro forma offers to purchase introduced to you by various estate agents will generally also contain a clause which stipulates that amendments and variations to the deed of sale must be in writing and signed by the parties before they become valid.

No verbal amendments or variations to the deed of sale will therefore be enforceable. If we have been appointed as the transferring attorneys, we will gladly assist with the drafting of these addendums.

When the Consumer Protection Act applies

Beware of sharks in the new development arena.

It is incorrect to interpret the ambit of the CPA as being applicable to all transactions. In some instances purchasers are given the false impression that they are entitled to certain rights in terms of this act, although this may not necessarily be the case.

The CPA has, as its primary objective, the protection of consumers in the commercial world. However, not all transactions and business relationships are regulated by the CPA.

It should be noted that only transactions where the person selling the property does so in the normal course of business fall within the ambit of the CPA. If you make an offer to Joe Soap, the CPA will not be applicable to the relationship between you and Joe as the seller. If, however, you purchase a property from a speculator or a developer, the CPA will normally be applicable.

Nevertheless, estate agents do provide a service to you as either the seller or the purchaser in the normal course of their business. The relationship between the seller and the agent on the one hand, and the purchaser and the agent on the other is therefore regulated by the CPA.


Next time: Choosing who buys the house; how it will be paid for; and how suspensive conditions influence the transaction 


¶ Contact MC van der Berg Attorneys on +27 (0)12 660 6000, email info@mcvdberg.co.za or visit their website

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