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Thread: Breach of deed of purchase by seller, help please!

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    Breach of deed of purchase by seller, help please!

    I hope someone will be able to assist. We recently decided to buy a "renovator's dream" property. Everything went as planned, until I started asking for confirmation of the occupation date. In the offer to purchase, we agreed on occupation on registration, or 1 March 2014. The estate agent then contacted me, requesting we sign an addendum amending the occupation date, as "the property was yet to register in the seller's name". We have already been approached by the registration and transfer attorneys to sign and do payment. Nonetheless, we agreed and signed the addendum, stipulating that we would be allowed to take occupation of the property on 1 April 2014. I arranged the move and all other logistical issues accordingly. When I informed the agent of our arrangements, said agent told me again that they hope to have the property registered in the seller's name before then, as they were not able to get the previous owners (the property was sold on auction to the current owner/seller) to move out before registration in the name of the seller is confirmed. They merely told us to extend our lease agreement at the house we currently reside in, as they were still waiting for the rates clearance certificate from the municipality, and there is no telling when they will receive it, and subsequently, when the property will be registered in the name of the seller. This after we have already given notice at our current landlords. My question is, what options do we have available? Can we force them to honour the addendum (and move in on the agreed date)? Should we cancel the purchase? Any advice and suggestions would be much appreciated. (Bear in mind, all suspensive conditions in the deed of purchase has been met.)
    Thanks!

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    Platinum Member sterne.law@gmail.com's Avatar
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    My conveyancing is a bit rusty, but I seem to remember a transfer via second and third parties. Have you appointed the conveyancer, speak to*tthem. A direct transfer will be quicker an cheaper for all.
    If your contract says 1 April then that's the term. If it says pending registration then another issue.
    You may also need the original sale agreement between tenant and the seller, to see what the terms were there.
    It sounds like the tenant is hesitant to move. Have they been paid?
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Thanks for the quick response. I have absolutely no idea if they have been paid, but I assume any monies will have gone into the estate as the property was sold in execution. The conveyancing attorneys were appointed by the seller. Incidentally, they are also the conveyancers between the previous owners and the seller.
    The addendum clearly states occupation as 1 April.
    Should the agreement between the tennant (previous owner) and the seller not be treated as an arm's length agreement in this instance? And can I force the seller to adhere to the terms in the addendum?

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    Platinum Member sterne.law@gmail.com's Avatar
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    I'll check the third Party transfer issue, especially if the conveyance is doing both transactions. A single transaction is bad for the,m only one fee.
    As to your contract, you could try and enforce it, but if the other tenant is in occupation then you need an eviction order.
    Also, itbmay be an impossible contract to perform, the current seller may have an agreement that they can only take possession on transfer, clearly meaning they can't put you into occupation.
    You should put pressure because the seller and agent know the terms of the first sale, and should have informed you. They probably did not want to because it may have put buyers off, waiting for a double transfer.
    You may want to consider putting pressure that they need to cover excess costs you may incur. Even if you rent some other property you may not get that as a damages claim give that it's a monthly expense to be incurred anyway, even if it is bond payment.
    I smell a rat. Not sure if Tehran auction was a repo or ssimilar, but given the intermediate seller, it sounds like estate agent, lawyer and seller all sassy a quick buck.
    The existing tenant may be upset, especially if a repo and/or strapped for cash. Try get hold of them, and see if you can 'rent' from them.
    I also think that the estate agent is the person to lean on especially there is some fancy footwork.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Platinum Member sterne.law@gmail.com's Avatar
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    're third party transfers.
    If A sells to B who sells to C
    If the contract from A says to B or his nominee, then there is only 1 transfer.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Bronze Member KristiKat's Avatar
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    it sounds on the face value that there was never a real contract.

    THE PROPERTY was never on the sellers name.

    And the seller lied to you.

    You cannot force specific performance on an unenforceable contract (where there is no property to produce)...since there is NOTHING that the seller can give you, and how long are you still going to wait for the transfer of the property into his name.

    Sounds like a scam.

    You are however entitled to that which you already produced - any monies you have paid to said seller.

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    Gold Member Houses4Rent's Avatar
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    So, time has progressed. How did it all end?

    I tend to agree with KrsitiKat. The seller cannot sell you what he does not own. Teh "nominee"thinsg ha sbeen stopped some years ago as far as I know. Its still exists, but one has 24h to name the "nominee" and not longer as this had been abused. I cant remember how.

    Next time make sure your OTP states 'vacant' occupation on transfer. Maybe the intial seller was living there and not just a tenant. He wil resist a lot being kicked out of his own former house. I personally stay away from auctions. Also check the breach clauses or write your own. I never use any agent's OTP template and always make my own.
    Houses4Rent
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