When a seller finds a willing buyer for his property, the parties have to come to an agreement regarding the terms and conditions of the sale. The agreement of sale is more than just an agreement on the selling price of a property. The price is usually just the starting point for the agreement of sale.
All the terms and conditions are negotiated by the parties to the sale. Anything goes. There are no standard contract for the purchase and sale of real estate in South Africa. There are numerous terms and conditions that can be included in the sales contract that will cause the parties to dissagree. It is each party's responsibility to make sure that the sales contract contains the terms and conditions they are willing to accept as part of the agreement of sale.
In South Africa, the vast majority of sales agreements are facilitated by real estate agents. A lot of sales agreements are drawn up by lawyers, while a few are concluded without outside help.
The important thing to remember, when drawing up an agreement of sale, is to be as thorough as possible. If some aspect of the sale is not addressed in the agreement of sale, common law principles will dictate the outcome of any dispute involving that aspect of the sale of the property. And I'm sure you would agree that it is better to reach agreement before committing to a sale, rather than getting the courts to dictate the terms after committing yourself to buy or sell a property.
The terms ‘agreement of sale’ and ‘offer to purchase’ are often used interchangeably in South Africa. But a written offer to purchas a property is simply a proposed agreement of sale, because only the buyer has signed it, indicating that the terms and conditions contained in the document is acceptable to him/her. The offer to purchase only becomes the agreement of sale once the seller accepts the offer by adding his/her signature to the document.
The agreement of sale could just as well have started out as a written offer to sell the property. The document offering the property for sale to a buyer becomes the agreement of sale once the buyer accepts the terms and conditions and signs the document.
If either of the parties to the agreement is married in community of property, or if his/her spouse is required to agree to the sale and purchase of real estate according to the laws of a foreign country, the agreement of sale only comes into being once all the required signatures have been added to the sales document.
An agreement to sell immovable property can not be concluded orally. An offer to purchase of sale may be made orally, but must be reduced to writing and signed by both parties to the transaction for an agreement of sale to come about.
