Table of Contents
The Offer to Purchase is not a formality. It is a binding legal contract, and once both parties have signed it. The leverage in the transaction shifts significantly, usually toward whoever read it more carefully.
I review Offers to Purchase regularly, both for sellers and buyers in the Upper Highway and on the North Coast. The same problematic clauses appear constantly because offer to purchase templates are designed for the average transaction, and no transaction is actually average. What follows is a plain-language explanation of the clauses that cause the most problems, seller disclosure and sales strategy, and what you should understand about each one before you sign any OTP.
The offer to purchase often has the voetstoots clause and the disclosure document
Voetstoots is an Afrikaans legal term meaning “as is.” A voetstoots clause in an OTP means the buyer accepts the property in its current condition, including any defects, with an important qualification. The seller cannot hide behind voetstoots for defects they knew about and deliberately concealed.
This is where sellers get into trouble with an OTP. The Property Practitioners Act requires sellers to complete a mandatory disclosure document listing known defects. Many sellers fill this in vaguely, “slight damp in the back room” when they know the back room has had a persistent water ingress problem for four years. That vagueness does not protect you. A buyer who can demonstrate you knew about a defect and concealed it can pursue a claim against you notwithstanding the voetstoots clause.
Fill in the disclosure form accurately. Attach it to the offer to purchase. Sign it with the buyer. This document, completed properly, is one of the most effective protections a seller has.
The occupation date and occupational rental
Many buyers want to move in before transfer registers. Transfer in KZN typically takes six to eight weeks from OTP signing, sometimes longer. Buyers with children, or who have already given notice at their current property, often need to take occupation before the legal transfer is complete.
This is manageable, but the terms matter. Occupational rental (the amount the buyer pays the seller for using the property before they legally own it) is negotiated as part of the OTP. It should reflect the real carrying cost to the seller. This includes the bond repayment, plus rates, plus levies if applicable. I have seen occupational rental set at nominal figures like R500 per month because neither party thought to negotiate it properly, while the seller continued paying R18,000 per month in bond and rates.
Also important: the condition of the property at the point the buyer takes occupation should be documented in writing and signed by both parties. Problems discovered after occupation, and disputed at transfer, are far easier to resolve when there is a signed record of the property’s state on the day the buyer moved in.
The fixtures and fittings list
An Offer to Purchase should specify clearly what is included in the sale. In KZN property disputes, the most common post-sale argument- after compliance certificates- is over what was supposed to stay with the property. Light fittings, curtain rails, the garden water feature, the flatscreen bracket on the wall, the built-in braai.
The rule is, if it is fixed to the property, it is included unless specifically excluded. If it is freestanding, it is excluded unless specifically included. The problem is that “fixed” and “freestanding” leave a lot of room for disagreement. A light fitting screwed to the ceiling is clearly fixed. A chandelier on a ceiling hook that the seller has had for twenty years feels fixed to them and freestanding to any reasonable buyer.
List the specific items you intend to take. List the specific items you intend to leave. Attach that list to the OTP and have both parties sign it. The conversation takes five minutes. The argument it prevents takes much longer.
The property description and erf number
This sounds obvious, but it matters: the property description in the Offer To Purchase must exactly match the title deed. The erf number, township, and extent of the property must be accurate. Errors in the property description can delay lodgement at the Deeds Office – and delays at that stage, when transfer is otherwise ready to proceed, are the most frustrating kind.
If you are selling a portion of a larger property, or if the property has been subdivided, the description is especially important to verify.
Everything above covers your disclosure risk as the seller. If you’re the buyer in this transaction, see what should be included in your Offer to Purchase before you sign.
One practical suggestion
As a seller, you don’t need to anticipate every possible dispute before you list. You need one thing only. Your disclosure document filled in honestly and specifically, not vaguely. A vague “slight damp issue” that turns out to hide four years of water ingress can undo the protection voetstoots was supposed to give you. Twenty minutes with a property lawyer before you sign the disclosure document costs far less than a claim after transfer.
Gordon De Beer reviews sale agreements and disclosure documents for sellers across the Upper Highway and North Coast KZN. The first consultation is free.
