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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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We have sold our house. Unfortunately, we signed the Offer

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We have sold our house. Unfortunately, we signed the Offer to Purchase under pressure, not realising that it was a binding document. Our Agent did not stress this. He assured us we could arrange a period of time to stay in the house, also that the registration could be delayed. We trusted him and we were foolish. Now the buyers are pressing us out of the house by beginning December, instead of our set date of end Feb. We are prepared to pay the occupational rent. We are pensioners, leaving for UK in March. Transfer has not taken place, but we need to make plans and we need this address for our banking and visa requirements. What are our legal options? Can we simply refuse to move until next year? They are local people with means.
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

Has the house already been transfered?
Customer: replied 3 years ago.

The house has not been transferred. We have had no timetable given to us.

Is there anything in the contract that says when the buyer can take occupation?
It is normally under a heading that says "occupation". It normally says "occupation will be given to the purchaser on _____________ / transfer"

And then the estate agent normally scratches out the bit that is not applicable.
Customer: replied 3 years ago.

The heading is Vacant Occupation and the only thing written in is "Registration"

Lastly. can I assume that you do not wish to cancel the sale agreement? You would very much prefer that the sale go through?
Customer: replied 3 years ago.

Yes, we would prefer the sale to go through. Is it not reasonable to be allowed to stay on two months and pay occupational rent?

Two months after transfer, or two months from the date of signing the contract?
Customer: replied 3 years ago.

Two months after transfer

Unfortunately, what is reasonable is not what is relevant here, but what is contained in the agreement. There is, unfortunately, no principle in South African Law that says that a seller can stay x amount of months after transfer in a property. It needs to be addressed by the agreement beforehand.

In this instance, the contract says that the buyers can have occupation at the date of transfer. The situation is then that they would not be able to legally remove you from the premises until the date of transfer, but unfortunately it also means that if you remain in possession of the property after transfer, you are in illegal occupation of the property.

I understand that you were not made aware of this situation by the estate agent when you signed the contract, but there is a principle in South African law that state that you are bound to what you have signed. In other words, the obligation is on you to make sure that you understand the agreement.

This obligation has been tempered somewhat by the Consumer Protection Act, but it would seem that this is only applicable to clauses in a contract that cannot be regarded as 'standard', and unfortunately, it would seem to me that these clauses pertaining to occupation is standard.

So, in conclusion, there is very little that the buyers can do to get you out of the property before transfer, but there is also very little that you can do to retain occupation of the property once transfer takes place.

They can apply for your eviction after transfer and cannot remove you without such a cost order and that takes about two months to get, so there is that. But, there is also a risk in remaining in possession, in that you can be made to pay the costs of the eviction order as well as face other claims for damages.

I am very sorry to have to tell this to you, but it would seem to me as if you would have to make arrangements for alternative residents once transfer takes place. I don't know when you started with this transaction, but transfer normally takes about 8 - 12 weeks to go through, if this is of any help to you.

I know that this is probably not the answer that you have hoped for, however, I hope that you can still get some value out of it. I try my best to provide you with a legally sound and accurate answer and however much it pains me, it is not always good news. Trust me when I say that I wish I could provide you with a more optimistic answer. If you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service.
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