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A Property24 reader explains that during February 2023 the estate agent showed her a property that was advertised. The house was a bit small so the seller suggested that she can have a look at her father's property-which was not advertised.
"We went there with the agent, and she showed us the house. I signed an offer to purchase in February 2023 for the property that was supposedly part of a deceased estate.
"End of May 2023, while still waiting for the letter of authority from the Master's Office, the conveying attorney informed me that the Estate was already closed by the Master's Office. Also, that the property I wanted to purchase, was not declared. So, I informed the agent that I want to search for another property. I had rented this property for 3 months, and do not want any further delays. The agent agreed," says the reader.
"Can I cancel the purchase and claim my money from the conveyancing attorney, since the registration process was not finalised?"
Linda Jordaan, attorney and conveyancer at Herold Gie Attorneys shares the following advice:
It is not advisable for a Purchaser to unilaterally cancel an agreement of sale, as this would amount to a repudiation of the Purchaser's contractual obligations, in the event that there is a valid agreement of sale in place, and he/she could face a claim for damages from the Seller and/or a claim for commission from the estate agent.
It is important to read the terms and conditions of the sale agreement, to establish the correct facts of the matter and to take legal advice before making a decision on the appropriate steps to take. When electing not to proceed with a transaction in respect of which there is a valid agreement of sale, one should either mutually agree with the Seller to cancel the sale, ensuring that the issue of commission is also dealt with in any such cancellation arrangement, OR put the Seller to terms for non-performance / breach of contract, in terms of the provisions of the agreement of sale.
It is also important to determine who the Seller of the property should be, as it is possible that the sale agreement was void ab initio i.e. not a legal contract from the start. If the registered owner of the property was deceased, the Seller of the property should have been the Executor in the estate, duly appointed by the Master of the High Court.
The fact that a property was not included in the list of assets when the estate was reported to the Master of the High Court, does not in itself prevent transfer of the property, it just causes a lengthy delay in the transaction being processed. If the estate of the deceased owner was indeed finally wound up to the satisfaction of the Master, it would need to be re-opened, the property dealt with in the Liquidation and Distribution account and the account re-advertised, whereafter the Executor could then deal with the property in accordance with the terms of the Will of the deceased, if he/she left a Will, or sell the property out of the estate, if the heirs in the estate consent to the terms and conditions of the sale.
* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.
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