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Remember the basics when signing the Deed of Sale

Yonda Investments CC v Rohr and Another (29235/2009) [2012] ZAGPPHC

(25 June 2012)

This recent judgment is one of many cases in which a Deed of Sale is declared void for non-compliance with the law and illustrates how important it is for parties to remember the basic essentials when signing the sale agreement.

In this case, the purchaser (Rohr) entered into an agreement of sale in terms of which he purchased a unit in a sectional title scheme from the developer (Yonda Investments CC).

At the time of signing the agreement the purchaser was married in community of property, however, his wife did not co-sign the Deed of Sale.

The agreement was signed by one Mrs Erasmus, an employee of the seller. At the time of signing Mrs Erasmus was not a member of the CC nor was there a resolution signed by the members authorizing Mrs Erasmus to act on behalf of the CC.

The purchaser subsequently “sought to escape liability under the agreement” which resulted in the seller instituting legal action against the purchaser for damages suffered.

The purchaser alleged that the agreement was invalid as it did not comply with the following legal provisions:

  • Section 15(2) of the Matrimonial Property Act, which states that no spouse may enter into a contract for the alienation of immovable property without the written consent of the other spouse;
  • Section 2(1) of the Alienation of Land Act, which states that an agreement of sale of immovable property must be in writing and must be signed by the parties thereto or by their agents acting on their written authority.

The purchaser’s spouse did not co-sign the agreement nor did she consent to the sale in writing, despite the couple being married in community of property.

Further, there was no evidence to show that Mrs Erasmus had the necessary written authority at the time of signing the agreement on behalf of the seller.

The Court declared the agreement void due to non-compliance with the Matrimonial Property Act and the Alienation of Land Act and as a result the seller’s claim for damages failed.

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