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I signed an OTP for a property off plan & paid R400k

I signed an OTP...

I signed an OTP for a property off plan & paid R400k deposit. My husband at the time agreed to sign as guarantee, now my ex he refuses to. The developer is running late & if r 5 months late with the transfer I can cancel the purchase. They r running 4 months late, but r fibbing. They want me to sign the transfer & my ex sign the bond docs. I cant qualify for a bond without my ex signing, so I will lose the deposit?

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Western cape, south africa

Lawyer's Assistant: What steps have you taken so far?

Contacted the bank to see if I could qualify for a bond without my ex which I cant as I am in between contracts. Also have asked the conveyancers & developer when the occupancy certificate is to be issued, as that indicates the dwelling is complete & transfer takes place 1 month later. They have not responded to that, but have just said the house will be ready for handover by the end of january

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Answered in 3 hours by:
1/19/2018
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,712
Experience: BCom; LLB; Masters in Law
Verified

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will try to assist you with your legal question but please feel free to ask as many follow up questions in order to clarify your initial question. If you have a new question, you must please open a new thread.

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only. Additionally, most people believe a phone call is the easiest and most efficient way to handle problems. Accordingly, you will receive an automatic phone call request. If you would like a phone call, please click “Accept” when prompted.

Do you mind if I take a moment to review your question? I will come back to you shortly!

CaseLaw

Ask Your Own South Africa Law Question

Hi there,

I am a practicing attorney based in South Africa and I will try to assist you with your legal question but please feel free to ask as many follow up questions in order to clarify your initial question. If you have a new question, you must please open a new thread.

This is a further information request so that I can provide you a proper answer to your legal question. Please continue in this same question thread.

Was the OTP a cash offer, or was it suspensive (subject to) you getting a bond within a certain period of time?

Were YOU the purchaser in terms of the OTP, or are you and your ex co-purchasers? Forget about the guarantor thing for the moment...

Was the transfer date specifically mentioned, or was it recorded as "as soon as possible", or what?

When was the OTP signed, and when did you get divorced from your ex husband?

Awaiting your further information.

Regards

CaseLaw

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Customer reply replied 7 months ago
I am the purchaser on the OTP, only me. The offer was subject to a bond being obtained which I did with a condition that my husband sign as guarantee which he agreed to do. He would sign this on transfer.
The transfer date was to be Oct 2017 as per the OTP & a clause indicated if the transfer is more than 4 months late, I can cancel the purchase & obtain my deposit & interest back. The developer told me they would be 5 months late in writing, when I wanted to cancel the Rabie's lawyers then indicated that transfer would be 4 moths late- so they were not in breach.
The OTP was signed in April 2016 & my ex & I got divorced in Sept 2017.They want me to sign the transfer now & my ex must sign now as the house Rabie tell me will be ready at the end of Jan & therefore transfer is in Feb( within their 4 months)- I know they running later. They wont tell me when the occupation certificate will be issue as this as per the OTP is a indication that the property is complete & transfer can only take place after that. I have attached the contract below called 78 THE VILLAGE -BROWN.pdf
Did you comply with the bond requirements as set out in an exit G? Did you get financing within 30 days? Was it confirmed in writing by your bank? Did you advise Rabie that you had obtained your bond approval?
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,712
Experience: BCom; LLB; Masters in Law
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Customer reply replied 7 months ago
I complyed with the bond requirements & I obtained financing in 30 days - it was confirmed in writing to the bank & sent to Rabie's conveyancers, so yes Rabie were advised that I had obtained the bond approval. The condition of the bond approval was that my ex husband sign as guarantee. If he did not the bond would not be provided on transfer of the property.
Customer reply replied 7 months ago
However when my bank's conveyancers requested the that my ex sign in the last few months, as Rabies conveyancers required the guarantee, I advised I was awaiting my ex to sign, but now he wont
Then you never obtained "unconditional" financing from your bank, and that means that you would be able to get out of the OTP. Rabie will obviously fight you on this tooth and nail, so my advice is that you get an attorney to represent you and write a letter to the seller confirming that you can't proceed with the sale as a result of your financing falling through, and demanding that your deposit is returned to you.
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