Agreements to sell fixed property must comply with certain prescribed formalities, failing which an Agreement may be invalid.

Section 2 of the Alienation of Land Act 68 of 1981 provides that an Agreement of Sale for a fixed property must be in writing and must be signed by both the Seller and the Purchaser or their agent, duly authorised by a written Power of Attorney, failing which the Agreement will be invalid.

The Agreement of Sale must contain, at the very least, details of :
• the parties (Seller and Purchaser);
• a description of the property;
• and state the purchase price;
• such further terms which are material to the specific transaction.

Given the requirements for a valid Agreement of Sale, the complexities associated with property transactions, and the relative high value of property transactions, it is prudent to make use of the services of a Conveyancer to ensure that the Agreement complies with all formalities and addresses the unique requirements of each specific transaction.

Meise Nkaiseng Attorneys was awarded the PMR Africa Diamond Arrow Award for ”best law firm” (Business Sector) in the Sedibeng Region for three years in a row (2018, 2019 and 2020).

The Seller normally has the right to appoint a Conveyancer to attend to the transfer of fixed property sold by such Seller.

In light of the fact that the Seller of property has the right to appoint the Conveyancer what, if any, is the responsibility of the Conveyancer towards the Purchaser of a fixed property?

Uncertainty prevailed with conflicting judgments adding to the uncertainty. We submit that the judgement by Judge HR Erasmus in the matter JW Bruwer and another vs Pakade Bailey Inc. is the correct approach. The learned judge concluded that there rests an onus on the Conveyancer to protect the rights of the both the Seller and Purchaser in the conveyancing process. The judge furthermore held that Conveyancers have a legal responsibility in accordance with their professional code of conduct to protect the interest of both parties.

The Conveyancer consequently has a fiduciary duty to both the Seller and the Purchaser to protect their rights in a transaction for the sale of fixed property and failure to do so will be unlawful.

Meise Nkaiseng Attorneys was awarded the PMR Africa Diamond Arrow Award for ”best law firm” (Business Sector) in the Sedibeng Region for three years in a row (2018, 2019 and 2020).

What Is a Conveyancer?

A Conveyancer is an admitted Attorney who passed further examinations set by the Legal Practice Council and is admitted by the High Court to practise as a Conveyancer.

A Conveyancer specialises in property related matters, including the drafting and registration of documents used to transfer properties from Sellers to Buyers; and to register mortgage bonds over fixed properties.

Meise Nkaiseng Attorneys was awarded the PMR Africa Diamond Arrow Award for ”best law firm” (Business Sector) in the Sedibeng Region for three years in a row (2018, 2019 and 2020).