REJ - 2019

AGENCY CONVERTING FROM CC TO COMPANY: EXISTING FFC STILL VALID? – 25 March 2019

Where an estate agency converted form a close corporation to a company, are the Fidelity Fund Certificates issued to the close corporation and its members sufficient and compliant with the requirements of the Act for the purposes of the operation of the (new) company and its directors? The judgment answers this question and illustrates the outcome of a dispute between an estate agency and an ex-intern employee regarding restraint of trade and the validity of the agreement they had entered into…

High Court rules no FFC no commission – 9 January 2019

No FFC no claim to sue for commission ruled acting Cape Town High Court judge Diane Davis on 12 December 2018 – a ruling that has thousands of agents worried as this directly impacts their income while still awaiting the Estate Agency Affairs Board (EAAB) to issue their FFC’s for 2019.

MANDAMENT GRANTED AGAINST PROSPECTIVE TENANT – 6 September 2019

The mandament van spolie is a remedy that ensures the restoration, before all else, of unlawfully deprived possession to the possessor. A classic example is that in certain circumstances, even a thief may use this remedy to hold onto goods, if the deprivation occurred unlawfully. This matter deals with the application of this principle, where a prospective purchaser and tenant moved into premises before an agreement was concluded…

MARITAL STATUS: AVOID THESE PITFALLS WHEN CONCLUDING AGREEMENTS – 19 FEBRUARY 2019

Most people are generally aware that in some large transactions, if they are married in community of property, they require the consent of their spouse. Less are aware that without such consent, the property transfer or donation could be invalid; and even fewer are aware of the fact that where a third party transacted with such a spouse in good faith, it is possible that the law will deem that there was consent…

ORAL AGREEMENT: OPTION TO PURCHASE VS PRE-EMPTIVE RIGHT – 27 August 2019

In 2017 the Constitutional Court declared that a pre-emptive right to purchase property need not be reduced to writing in order to be valid. This was because a right of pre-emption gives the holder thereof no right to claim transfer of land; it merely gives him a right to enter into an agreement of sale with the grantor, should the latter wish to sell…

SALE SUBJECT TO “SUCCESSFUL SALE” OF PURCHASER’S HOME: WHAT DOES THIS MEAN AND MORE – 29 August 2019

This is an interesting judgment that combines many grounds often raised by sellers as a way to escape the consequences of having accepted an offer to purchase: from the argument that it was not signed by both spouses in a marriage in community of property, to the argument that the suspensive condition relating to the ‘successful sale’ of the purchaser’s property actually required ‘registration of transfer’ of such property. The judgment provides a valuable reminder of the law’s application to different factual scenarios…

SUSPENSIVE CONDITION FULLFILLED? ESTATE AGENCY SUCCESSFULLY CLAIMS COMMISSION – 1 February 2019

This judgment dealt, amongst other things, with the question whether an estate agent exercised a discretion afforded to it to extend a bond due date. The seller argued the wording of the bond clause in the Offer to Purchase did not constitute an ‘automatic extension’, or failing that and furthermore, that the estate agency was not entitled to commission due to alleged non-compliance with the Estate Agency Affairs Act’s Fidelity Fund Certificate requirements…

WITHDRAWING AN IRREVOCABLE OFFER BEFORE ACCEPTANCE – AUCTION WOES – 24 January 2020

In a judgment that creates some precedent for auction sales, the Court dealt with the following questions: (i) Can an auctioneer, as agent of the seller, be held personally liable for obligations of his principal?; (ii) can the purchaser who makes an irrevocable offer withdraw this whilst it is still open for acceptance; and (iii) can an option agreement can be repudiated before it comes into existence? …