AGREEMENT OF SALE
In respect of
Erf , BEAU RIVAGE
ENTERED INTO AND BETWEEN
XXXXXXXXX RESIDENTIAL (PROPRIETARY) LIMITED
REGISTRATION NUMBER 2006/002701/07
(the “Seller”) of
0xx Xxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, 0 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx, 0000 Postnet Suite 205, Private Bag X 20009, Garsfontein, 0042
email@example.com (the "Domicilium Address") and
Registration / Identity number/s
If a legal entity, duly herein represented by
(Full names and identity number of person representing a legal entity)
(the "Purchaser”) of
Postal Address :
E-Mail Address :
(the "Domicilium Address")
IT IS HEREBY AGREED AS FOLLOWS:
1.1 “Aesthetics Committee” means a committee that acts as a representative of the Association in relation to all aesthetical matters pertaining to the Township.
1.2 “Agent” means Tel:
1.3 “Annexure “A” means the document attached as Particulars of Purchaser and Ancillary Provisions.
1.4 “Architectural Guidelines” means the specifications prepared for improvements in the Township, the terms of which the Purchaser undertakes to comply with. These guidelines are available on the website xxx.xxxxxxxxxxxxxx.xxx
1.5 “Association” means the Beau Rivage Home Owners Association NPC Registration Number 2004/026126/08 and the Estate DÁfrique Master Owners Association NPC Registration Number 2002/021395/08, both being non-profit companies duly incorporated in terms of the Companies Act, Xx 00 xx 0000, xx xxx Xxxxxxxx xx Xxxxx Xxxxxx.
1.6 "Conditions of Establishment" means the Conditions of Establishment of the Township as approved by the Local Authority and reflected in the proclamation notice of the Township.
1.7 “Conveyancer” means the Seller’s appointed conveyancer namely, Xxxxx and Xxxxx of Pretoria, ref: Mr R Grové Tel: (000) 000 0000; e-mail: firstname.lastname@example.org who will attend to the registration of transfer.
1.8 “Date of Signature” means the date on which this agreement is signed by the last one of the Purchaser and Seller.
1.9 “Estate”/”Township” means Beau Rivage.
1.10 “General Plan” means the General Plan SG No. 6256/2007.
1.11 “Local Authority” means the Madibeng Local Municipality or its successor in title within whose boundaries the Property is situated; “Council” shall bear a similar meaning.
1.12 “MOI” means the Memorandum of Incorporation of the Association.
1.13 “Property” means vacant Residential Erf
in the Township, measuring
square meters as
indicated on the General Plan, and “erf” shall bear the same meaning.
1.14 “Purchaser” means the person indicated as such on page 1 of this agreement with particulars as set out in
Annexure "A" hereto.
1.15 “Purchase Price” means the purchase price referred to in clause 3.
1.16 “Seller” means [*Xxxxxxxxx Property Developments Proprietary Limited Registration Number 2004/016760/07, a company duly incorporated in accordance with the laws of the Republic of South Africa, of 0xx Xxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, 0 Xxxxxxxx Xxxxxx, Xxxxxxxx Manor, Pretoria*.]
1.17 “Township” see 1.10 above.
1.18 “Township Register” means the township register for the Township, opened and registered in the appropriate Deeds Office in accordance with the General Plan and the Conditions of Establishment.
1.19 An expression which denotes –
1.19.1 any gender includes the other genders;
1.19.2 a natural person includes an artificial or juristic person and vice versa;
1.19.3 the singular includes the plural and vice versa
1.19.4 days refer to calendar days and are to be calculated from a particular day, excluding such particular day and commencing on the next day;
1.20 Any reference to any statute, regulation or other legislation shall be a reference to that statute,
regulation or other legislation as at the Date of Signature, and as amended or substituted from time to time;
1.21 Where any term is defined within a particular clause other than this one, that term shall bear the meaning ascribed to it in that clause wherever it is used in this agreement;
1.22 the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it.
The Seller hereby sells the Property to the Purchaser who purchases same.
3. PURCHASE PRICE
The Purchase Price of the Property is the sum of:
R ( Rand) (inclusive of Value Added Tax (“VAT”)).
4. VALUE ADDED TAX
The Purchase Price is inclusive of VAT, calculated at 14% of the Purchase Price of the Property. If the rate at which VAT is chargeable in respect of this transaction is increased or decreased so as to affect the amount of VAT, the Purchaser shall be liable for the increased amount of VAT, or the price adjusted with the saving on the VAT.
5. PAYMENT OF PURCHASE PRICE
The Purchase Price is payable as follows:
5.1 The Purchase Price shall be paid to the Seller upon transfer. Such payment shall be secured as follows:
5.1.1 A deposit of R
( Rand) shall be paid to the Conveyancer within 14 (fourteen) days from the Date of Signature.
5.1.2 The balance of the Purchase Price in cash or by the delivery to the Seller or its nominee of a guarantee or guarantees by a registered bank or other financial institution to be approved by the Seller, expressed to be payable, free of exchange, to the Seller at Pretoria upon transfer, which cash payment shall be made or guarantee be delivered within 28 (twenty eight) days of fulfillment of the suspensive conditions in paragraph
6.1 below, or in the event where there are no such suspensive conditions, within 28 (twenty eight) days from Date of Signature, alternatively within such extended period agreed to in writing by the Seller, failing which this agreement shall lapse and be of no further force and effect and the parties shall be restored to the position in which they would have been, had this agreement not been entered into and neither party shall have any claim against the other.
5.2 Any amount paid by the Purchaser in respect of the Purchase Price shall be invested in an interest bearing account for the benefit of the Purchaser in terms of Section 78(2A) of the Attorneys Act, 53 of 1979 and the Purchaser hereby instructs the Conveyancer to make such investment.
5.3 The Purchaser is not entitled to withhold any payment in terms of this agreement by reason of alleged breach of contract by the Seller or to effect set-off of any debts.
6. CONDITIONS PRECEDENT
This agreement is not subject to approval of finance and payment of the Purchase Price shall be made as per 5.1 above except in the case where a specific loan amount is indicated in 6.1.1 below.
6.1.1 This agreement is subject to and conditional upon the Purchaser being granted a final loan by a bank within 28 (twenty eight) days of Date of Signature for an amount of not less than R
( Rand) against the security of a first mortgage bond to be registered over the Property simultaneously with the registration of transfer of the Property in the name of the Purchaser, and on the usual terms and conditions applicable to such a loan. In the event of this suspensive condition not being fulfilled within the above period, the Seller may, before the expiry of the period, extend such period by written notice to the Purchaser for as long as it in its discretion may decide. The right to extend such period is solely for the benefit of the Seller.
6.1.2 The Purchaser undertakes to apply for the aforesaid loan within 7 (seven) days from the Date of Signature hereof by the Purchaser and to sign all necessary documents, furnish all relevant information and do everything necessary as soon as required to do so by the bank concerned. The Purchaser further undertakes to furnish the Seller on demand with proof of submission of such application to a bank or financial institution. Failure by the Purchaser to comply with the provisions of this clause 6.1.2 shall constitute a material breach of this agreement and the Seller may either exercise his rights in terms of clause 18 or may deem this suspensive condition as having been fulfilled.
6.1.3 The Purchaser undertakes to furnish the Conveyancers with written confirmation from the lending bank that the aforesaid loan has been granted, within 3 (three) days after the Purchaser received notification of the granting of the loan.
6.1.4 It is agreed by the parties that the suspensive condition referred to in clause 6.1.1 shall be for the benefit of both the Seller and the Purchaser. Notwithstanding anything to the contrary herein contained, if the Purchaser advises the Seller in writing that the Purchaser waives the benefit of the said suspensive condition, then the condition shall be deemed to have been fulfilled.
6.2 The condition precedent referred to in 6.1 will be deemed to be fulfilled if any bank or financial institution agrees to grant such loan -
6.2.1 Subject to it being guaranteed by the Purchaser’s spouse by way of suretyship or otherwise; and/or
6.2.2 Subject to any terms usually imposed by such registered bank or financial institution.
6.3 The Purchaser –
6.3.1 warrants that his financial position is such that, having regard to the criteria or requirements usually applied by banks, his application for a loan should not be refused;
6.3.2 shall use his best endeavors to procure fulfillment of the said condition precedent and, without limiting the generality of the aforegoing, the Purchaser undertakes to do all such things as are normally required by any bank in connection with the grant of such loan ;
6.4 The Purchaser irrevocably appoints the Seller’s elected bond originator OOBA, in his stead, to apply for the loan referred to in 6.1 hereof and to sign all and any necessary documents or application forms on behalf of the Purchaser, should the Purchaser fail to do so within the period stipulated in 6.1.2 hereof.
6.5 If the condition precedent is not fulfilled within the period referred to in 6.1.1, then this agreement shall cease to be of any force or effect and the parties shall be restored to the position in which they would have been, had this agreement not been entered into and neither party shall have any claim against the other as a result of the failure of the condition precedent, except for such claim, if any, as may result from a breach of the provisions of this clause.
6.6 It is further recorded that there may be existing agreement(s) to purchase the Property signed which will take precedence over this agreement and that fulfillment of any/all suspensive conditions in any such other agreement(s), will effectively cancel this agreement and will be considered a suspensive condition to the validity of this agreement. If applicable this transaction is further subject to the successful conclusion of previous transactions and/or agreements enabling the seller to give transfer, failing which it will be regarded as a suspensive condition to the validity of this agreement. This clause will be for the benefit of the Seller.
7. AGENTS COMMISSION
The Purchaser warrants that he was introduced to the Property by the Agent in which case R (incl VAT) agents’ commission will upon date of registration of transfer of the property be deemed earned and payable to said Agent by the Seller in accordance with the mandate granted to the Agent by the Seller / Best Case, provided that should the Purchaser fail to carry out his obligations in terms of this Agreement of Sale, the Purchaser shall be liable for payment of
such commission and the Agent shall have the right to recover such commission from the Purchaser. The commission shall be payable to the Agent upon registration of transfer of the property into the name of the Purchaser. The Agent will have no claim for commission against the Seller if the Property is not transferred to the Purchaser for any reason whatsoever.
8.1 Transfer shall be effected by the Conveyancer within a reasonable time after:
8.1.1 Date of Signature of the agreement and fulfillment of the conditions precedent;
8.1.2 the Purchaser has complied with all his obligations in terms of this agreement at that date;
8.1.3 the Purchaser has paid the costs of the transfer and bond registration, and other ancillary costs thereon at the prescribed rate, which the Purchaser shall be liable to pay to the Conveyancer on demand; and
8.1.4 the Purchaser has signed all necessary documents and provided all necessary information and copies of such documentation for the purpose of transfer which the Purchaser shall be obliged to do within 7 (seven) days of being called upon to do so by the Conveyancer.
9. BOND, TRANSFER AND OTHER COSTS
9.1 The Purchaser shall be liable:
9.1.1 for all transfer and bond registration costs, deeds office levies, and financial institutions’ initiation, valuation and administrative fees.
9.1.2 to pay an estimated provisional levy to the Association for services to be provided. This levy will amount to such an amount as will be determined from time to time by the directors of the Association.
9.1.3 to sign a debit order in favour of the Association within 7 (seven) days of being requested to do so, for the monthly payment of levies due to the Association.
9.2 The Seller shall be liable to pay the required rates amount in advance to the Local Authority in order to obtain the rates clearance certificate.
10. CAPACITY OF PURCHASER
10.1 Already formed Entity
Should the Purchaser be a company, close corporation or a trust, the signatory hereto warrants
10.1.1 that he is duly authorised to enter into this agreement on behalf of the company, close corporation or trust;
10.1.2 that the company, close corporation or trust is lawfully entitled to acquire and take transfer of the Property;
10.1.3 that all conditions have been complied with in order to make this agreement binding to the company, close corporation or trust;
10.1.4 that the company, close corporation or trust will duly and punctually comply with all its obligations in terms of this agreement;
and binds himself in his personal capacity by virtue of his signature hereto as surety and co- principal debtor jointly and severally with the legal persona for due and punctual performance of all the terms and conditions of this agreement.
10.2 Purchaser acting as trustee for Company to be formed
If the signatory hereto is acting as a trustee for a company ("the legal persona") to be formed then in the event of the legal persona not being formed and ratifying and adopting this agreement within 30 (thirty) days of date of this agreement, (or any further period agreed upon by the parties) then the signatory in his personal capacity shall be the Purchaser hereunder and shall be bound by all the terms of this agreement. If the legal persona is formed and duly adopts and ratifies this agreement as aforesaid then the signatory binds him as surety and co- principal debtor jointly and severally with the legal persona for due and punctual performance of all the terms and conditions of this agreement.
11. POSSESSION AND OCCUPATION
11.1 The Purchaser shall take occupation and possession and assume control of the Property on date of registration of transfer of the Property in the name of the Purchaser, from which date it shall be at the sole risk, loss, profit and expense of the Purchaser and from which date the Purchaser shall be liable for all levies, rates and taxes whatsoever levied upon the Property by the government or Local Council, other competent authority, or the Association.
11.2 Should the Seller have pre-paid any such rates and taxes, levies and charges beyond the date of transfer aforesaid, the Purchaser shall on demand refund any such amounts paid beyond this date to the Seller.
12. LAND CLAIM, HOME OWNERS ASSOCIATION AND SERVICES
12.1 The Purchaser acknowledges and binds himself that he shall upon registration of transfer of the Property into his name, automatically become and remain a member of the Association, and be liable for payment of the monthly levy, as determined by the Association from time to time from date of such registration, and agrees to do so, and to subscribe to the MOI of the Association for as long as he is the registered owner of the Property.
12.2 The Seller and/or the Association shall be entitled to procure that in addition to all other conditions of title and/or subdivision referred to above, the following conditions of title inter alia be inserted (if not already done so) in the deed of transfer in terms of which the Purchaser takes title to the Property:
(a) The transferee and its successors in title or assigns of the within mentioned property shall upon transfer of the within mentioned property become a member of the Beau Rivage Home Owners Association NPC, Registration Number 2004/026126/08 (hereinafter referred to as the “Association”) and remain as such and be subject to its Memorandum of Incorporation and all Village rules and Architectural Guidelines framed in terms thereof, until the transferee or each subsequent successor in title or assigns ceases to be the registered owner of the property. The Association shall have full responsibility to promote the communal interest of owners and residents in the township, which will include but not be limited to maintenance of private roads and sidewalks, private open spaces and servitudes, sewer purification and sanitary services, electricity facility, security facilities, water supply and purification and storm water drainage.
(b) Neither the property nor any interest therein shall be transferred to any person who has not bound him/her/itself in writing to become a member of the Association.
(c) The transferee and its successors in title or assigns shall not be entitled to transfer the property without a clearance certificate from the said Association certifying that all amounts owing by the registered owner to the aforesaid Association have been paid.
12.3 In the event of the Registrar of Deeds requiring the amendment of the conditions in clause 12.2 above in any manner in order to affect registration of same, the Purchaser hereby agrees to such amendment.
12.4 It is placed on record that levies over the Property are presently at a reduced rate in accordance with a Special Home Owners resolution and said levies payable by the Purchaser will escalate 11% (eleven percent) per annum compounded (which is a higher escalation than properties on the rest of Estate d’Afrique) until such time the levies payable by the Purchaser are on par with the levies payable by the other owners of properties in the Estate from which point escalations will be on par as determined by the Home Owners Associations and their directors from time to time.
12.3 The Purchaser acknowledges that he/she is aware that a land claim has been registered over the property and the surrounding area.
13. DEVELOPMENT OF THE ESTATE
13.1 The Purchaser agrees, acknowledges and records that he is aware of the intention to erect and complete buildings and further facilities at different times and in different phases on the remainder of the Estate, which intention may be varied or withdrawn by the Seller and/or the owners of the adjacent properties for any reason it believes necessary or desirable in its sole discretion.
13.2 The Purchaser acknowledges that the xxxxx in the Township of which the Property is one, are not yet fully developed, that building operations will take place upon adjacent or neighbouring subdivisions of the Estate or xxxxx in the Township and that the said building operations may cause the Purchaser certain inconvenience, but that he shall have no claim whatsoever against the Seller or the Association or any other owner of an undeveloped portion for any such inconvenience.
14. BUILDING PERIOD
14.1 The parties agree that the Seller shall be entitled to procure that in addition to all other conditions of title and/or subdivision referred to above, the following conditions of title inter alia be inserted in the deed of transfer in terms of which the Purchaser takes title to the Property:
“The transferee or its successors in title or assigns to the within mentioned property is obliged to commence construction of improvements constituting a dwelling house within 1 (one) year from the date of registration of transfer from the township developer to the initial purchaser thereof and to complete the erection of improvements constituting a dwelling house on the property within 2 (two) years from the date of registration of transfer from the township developer to the initial purchaser thereof. Should the transferee or its successor in title or assigns fail to commence and/or complete the aforementioned dwelling house within the aforesaid time period, the transferee or its successor in title or assigns shall no longer benefit from the reduced levy presently applicable to this property as per special resolution and in addition to any other levies payable to the Beau Rivage Home Owners Association, become
liable for the payment to the Association of a monthly penalty levy, from date of non-compliance as set out above until date of the full compliance therewith by the transferee or its successor in title or assigns, both days inclusive, in a sum equivalent to the amount of the monthly levy payable to the Association at that time,. The aforesaid penalty levy shall escalate after every completed period of 12 months after date of non-compliance with a further sum equivalent to the monthly levy, as determined by the Association at that time.”
14.2 In the event of the Registrar of Deeds requiring the amendment of the conditions in clause 14.1 above in any manner in order to affect registration of same, the Purchaser hereby agrees to such amendment.
15. OFFER AND ACCEPANCE
Should the Purchaser sign this agreement prior to the Seller, then by his signature hereto, the Purchaser offers irrevocably to purchase the Property for the price and on the terms and conditions herein contained and the Purchaser undertakes not to withdraw this offer for a period of 7 (seven) days.
16. CONDITION OF PROPERTY
16.1 The Property hereby purchased is unimproved land and has been identified by the Purchaser.
16.2 The Property is sold as inspected by the Purchaser, including soil conditions and is sold and will be transferred subject to all the conditions and servitudes mentioned or referred to in the Seller’s title deed, and especially subject to the conditions set out in the relevant town planning scheme, in the Conditions of Establishment of the Township and in this agreement.
16.3 Should the Property have been erroneously described in this agreement then the correct description of the Property as set out on the General Plan shall be applicable, and this agreement shall automatically be deemed to be so amended and the Purchaser shall, regardless of the discrepancy, take transfer of the correct Property in compliance with the terms of this agreement.
16.4 The Seller shall not gain by any excess, nor shall the Seller be responsible for any diminution in the area of the Property that might be revealed through any re-survey of the Property.
16.5 The Purchaser acknowledges that the beacons of the property have been pointed out to him and that the Seller will have no further obligation in this regard after date of this agreement.
16.6 The Purchaser acknowledges that the soil condition of the property may require special foundations such as reinforced and/or floating foundations and the Purchaser acknowledges that the Seller will have no obligation in this regard.
17. ANNEXURE “A”
The parties agree that Annexure “A” forms an integral part of this agreement.
18.1 Should the Purchaser’s estate be provisionally sequestrated or liquidated as insolvent or placed under judicial management prior to transfer of the Property to the Purchaser or should the Purchaser commit a breach of any provision of this agreement and should he fail to remedy such breach within 7 (seven) days of the date of receipt of written notice from the Seller calling upon him to do so, the Seller shall have the right, without prejudice to any other rights available in law:
18.1.1 to cancel this agreement by written notice to the Purchaser. The cancellation shall be deemed to take effect 4 (four) days after the date of posting the notice to the Purchaser by prepaid registered post. In the event of cancellation and on such date of cancellation:
220.127.116.11 the Purchaser shall deliver possession and occupation of the Property and any improvements thereon to the Seller at the Purchaser’s expense;
18.104.22.168 prior to transfer of the Property to the Purchaser, the Purchaser shall have no claim for compensation for any improvements of any nature whatsoever on the Property, which improvements shall vest in the Seller;
22.214.171.124 any amounts paid by the Purchaser to the Seller shall be retained as rouwkoop for the Seller’s pre-estimated and/or liquidated damages, or alternatively the Seller may institute action against the Purchaser for recovery of the actual damages suffered by the Seller and to retain all payments received in terms of the agreement pending determination of such actual damages.
18.1.2 to claim immediate specific performance in accordance with the terms of the agreement including payment of all amounts payable in terms of this agreement, whether or not such amounts are then due for payment, together with any damages suffered by the Seller in consequence of the Purchaser’s default.
18.2 Notwithstanding the aforegoing and without prejudice to the Seller's other rights in terms of this agreement and in law, should the Purchaser fail to deliver the guarantees timeously or fail to pay any transfer costs or other amounts
due and payable in terms of this agreement on its due date, or should the Purchaser cause the registration of transfer to be delayed in any way, the Purchaser shall forthwith from such date of failure to deliver the guarantees or to effect payment, until date of receipt of guarantees or payment by the Seller/Conveyancer; or from the date of the commencement of the delay occasioned by the Purchaser until such date that the aspect causing the delay has been resolved, as the case may be, be liable to pay interest to the Seller on the Purchase Price at the prime lending rate charged by Absa Bank Limited during the period aforesaid plus 2% (two percent), which interest shall be payable on demand by the Seller.
For the purpose of all or any proceedings hereunder the parties hereby consent to the jurisdiction of the Magistrate’s Court notwithstanding that such proceedings are otherwise beyond its jurisdiction. Signature hereof by the Purchaser shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to Section 45 of the Magistrate’s Court Act or any amendment thereof, provided, nevertheless, that the Seller shall have the right as its sole option and discretion to institute proceedings in any other competent court.
20. DOMICILIA CITANDI ET EXECUTANDI
20.1 Any notice or document to be given by or to either party in terms of this agreement may be hand delivered, sent by prepaid registered mail or sent by e-mail to the address(es) indicated by such party on page 1 of this agreement.
20.2 Any notice dispatched to a party by pre-paid registered mail to such party's chosen postal address
will be deemed to have been received by such party and its contents to have come to such party's attention on the 5th (fifth) day after the day on which it is posted in the Republic of South Africa or on the date upon which the notice is successfully transmitted to the other party's chosen e-mail address, provided such e-mail is transmitted during ordinary business hours, otherwise it would be deemed to have been received on the next business day.
20.3 Any party is entitled to change their postal address, physical address and/or e-mail address by written notice thereof to the other party.
21. WHOLE CONTRACT AND WAIVER
21.1 The parties hereto acknowledge that the afore written agreement constitutes the entire contract between them and that no other conditions, stipulations, warranties or representations whatsoever, expressly or impliedly, have been made by either party or his/her agents other than such as may be included herein and signed by the parties thereto. The parties further acknowledge that no amendment to or consensual cancellation of this agreement shall be of any force and effect unless reduced to writing and signed by the parties hereto.
21.2 No indulgence, extension of time for any payment, latitude or concession in respect of the performance of any obligation imposed hereunder, granted or allowed by the Seller to the Purchaser at any time shall under any circumstances be deemed to be a waiver by the Seller of any of its rights against the Purchaser arising here from, or as a novation of any such obligation, or as a precedent, and shall not in any way affect, diminish or prejudice any of the Seller's rights against the Purchaser, or any surety for the Purchaser in terms hereof, and the Seller shall be entitled at any time to demand strict and punctual fulfillment of all the Purchaser's and such surety's obligations hereunder, despite any such indulgence, extension, latitude or concession.
THUS DONE AND SIGNED BY THE PURCHASER/S ON THE DATES AND AT THE PLACE STATED HEREUNDER.
with the signatory being (Full names)
THUS DONE AND SIGNED BY THE SELLER ON THE DATES AND AT THE PLACE STATED HEREUNDER. DATE PLACE
WITNESS on behalf of the SELLER
THUS DONE AND SIGNED BY THE AGENT ON THE DATE AND AT THE PLACE STATED HEREUNDER IN ACCEPTANCE OF THE RIGHTS PERTAINING TO THE COMMISSION.
WITNESS for the AGENT