Attorneys at Law

South Africa

If you cannot be streetwise yourself, consult someone who is!

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Estate agents are not really agents at all. An agent, in the strict sense, is a person to whom you give the power to represent you in your absence. A true agent also has the obligation to be utterly faithful to you. He may not act against your interests. An estate agent usually represents both parties and his only interest is seeing that a sale takes place. An estate agent is paid for clinching the deal. He must introduce a willing buyer to a willing seller and broker a deal in order to earn his commission.

It is very important, when buying a residential or commercial property, to obtain objective advice regarding the transaction. It is too late once you have signed the agreement.

In our experience estate agents often discourage buyers from taking advice because they feel that it could delay the transaction and the buyer may change his mind.

In reality an experienced attorney will be able to check an agreement of sale in less than an hour. There should never be a reason for an attorney to delay a sale transaction. We often find however that the agreements used by estate agents are flawed. This probably happens because not all sales are standard transactions and estate agents cannot be fair to both parties. The property market will always have an imbalance of buyers and sellers. You can guess where loyalties lie, where there are more buyers than sellers, or vice versa.

An offer to purchase.

Estate agents call the document with which parties are presented when a sale of land is contemplated, an "offer to purchase". They continue to call the document by this name long after it has become a firm and binding contract. Almost invariably these documents are standard and often they have not been prepared by an attorney. The odd thing is that the document only remains an offer if there is no deal. The moment the parties have signed it, it becomes a binding agreement. Since it will only ever be relevant when it is in fact singed by both parties and has ceased to be “an offer”, there is obviously a great deal wrong with calling the signed document “an offer”. Nevertheless this is standard practice, although patently wrong.

Amusingly we have often been chastised by estate agents for drawing a sale agreement and calling it "an agreement". I suppose it is frightening for a buyer to realise that once it is signed the deal is done, and cancelling can be a very expensive ordeal.