Giant’s View Sale AgreementPage 1
March 2015
GIANT’S VIEW ESTATE
OFFER TO PURCHASE
entered into between
ADRIAN WILSON
(hereinafter referred to as “the Seller”)
and
______
(hereinafter referred to as “the Purchaser”)
PREAMBLE
Whereasthe Seller has received approval in terms of the Development Facilitation Act, 67 of 1995, for the development of an estate known as “Giant’s View Estate”;
and whereasupon fulfilment of the conditions of approval laid down by the Development Tribunal in terms of the Development Facilitation Act, 67 of 1995, the Seller will proceed with the transfer of residential erven to the purchasers thereof;
and whereasthe Development Facilitation Act, 67 of 1995 has been relaced by the KwaZulu-Natal Planning and Development Act, No.6 of 2008 (PDA) and in terms of the PDA, development approvals in terms of the DFA are to be regarded as PDA approvals, therefore, the provisions of the PDA apply to this agreement;
and whereasthe Purchaser wishes to purchase the residential erf described herein, and the Seller is prepared to sell same, subject to the terms and conditions set out herein;
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1.INTERPRETATION
1.1The singular shall include reference to the plural and vice versa.
1.2Any one gender shall include a reference to another gender and to a body corporate and vice versa.
1.3The headings to clauses of this agreement are for the purposes of reference only and shall not govern their interpretation.
1.4If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the agreement, notwithstanding that it is only contained in the interpretation clause.
1.5If any period is referred to in this agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a business day, in which case the day shall be the next succeeding business day.
1.6Any reference to days shall be reference to business days.
1.7In this agreement, unless the context clearly indicates the contrary, the following words, phrases and expressions shall have the respective meanings assigned to each of them as set out hereunder:
1.7.1“the Association”the Giant’s View Estate Home Owners’ Association;
1.7.2“the Association’s Constitution”the Giant’s View Estate Home Owners’ Association’s constitution, a copy of which is attached hereto marked “C”;
1.7.3“the Conveyancers”the Conveyancers nominated by the Seller and referred to in annexure “A” hereto;
1.7.4“date of transfer”the date of registration of transfer of the residential erf in favour of the Purchaser;
1.7.5“Development Tribunal”the Development Tribunal established in terms of the Development Facilitation Act, 67 of 1995;
1.7.6“the effective date”the date by when both parties have signed this agreement;
1.7.7“the estate”Giant’s View Estate;
1.7.8“the general plan”a general plan relating to the land or a portion thereof, as approved by the Surveyor General;
1.7.9“the land”the land on which the estate is to be developed, being Portion 237 of the Farm Springvale No 2170;
1.7.10“the residential erf”the erf referred to in the schedule of details attached hereto marked “A”;
1.7.11“VAT”Value-added Tax, as applicable in terms of the VAT Act on the date of payment of the purchase price by the Purchaser to the Seller;
1.7.12“VAT Act”the Value-Added Tax Act, 89 of 1991, as amended.
2.THE RESIDENTIAL ERF
Subject to the terms and conditions of this agreement and with effect from the effective date, the Seller hereby sells and the Purchaser herby purchases, the residential erf described in the schedule of details attached hereto marked “A”.
3.PURCHASE PRICE
The purchase price, inclusive of value-added tax (“VAT”), is the sum set forth in Annexure “A”.
4.PAYMENT OF PURCHASE PRICE
4.1The purchase price shall be paid by the Purchaser to the Seller on the date of transfer.
4.2The Purchaser shall secure payment of the purchase price by providing the Conveyancers:
4.2.1within 10 (ten) days of the effective date, with a deposit in the sum referred to in annexure “A” hereto, which shall be paid to the Seller on the date of transfer;
4.2.2within 30 (thirty) days of approval of the Purchaser’s loan application referred to in clause 5 below, with a guarantee for the balance of the purchase price in a form acceptable to the Seller, which shall be payable on the date of transfer.
4.3Any payments made to the Conveyancers shall be held by them in trust in an interest bearing account for the benefit of the Purchaser until registration of transfer, this document constituting the written authority of the Purchaser to do so.
4.4Unless otherwise provided for herein, all payments on account of the purchase price, interest, rates, taxes and other charges provided for in terms of this agreement, shall be made by the Purchaser to the Seller, free of all bank costs or other deductions.
5.SUSPENSIVE CONDITIONS
5.1This agreement is subject to the fulfilment (or where appropriate waiver) of the following condition precedent, namely:
5.1.1the securing of the necessary approval from the Purchaser’s financier to the provision of finance in respect of the purchase price payable in terms of clause4 above, by no later than 30 (thirty) days from the effective date;
5.2The condition precedent set out in clause5.1.1 above has been inserted for the benefit of the Purchaser and the Purchaser shall be entitled to waive such conditions precedent by the furnishing of written notice to the to the Seller to such effect.
5.3In the event that the conditions precedent are not fulfilled timeously, or waived, then this agreement shall be of no further force or effect, save for this clause 5, and neither party shall have any claim against the other, save that the deposit referred to in clause 4.2.1 above shall be refunded to the Purchaser together with any interest earned thereon.
6.POSSESSION, RISK AND BENEFIT
6.1The Purchaser shall take possession and occupation of the residential erf with effect from the date of transfer.
6.2The risk in and benefits of the residential erf shall pass from the Seller to the Purchaser with effect from the date of transfer.
6.3The Purchaser shall be liable for all levies, rates and taxes and any other charges levied upon the residential erf by any competent authority from the date of transfer.
6.4Should the parties agree in writing that the Purchaser take occupation before the date of transfer, no tenancy shall thereby be created and under no circumstances will the Purchaser acquire any lien or be entitled to any compensation for any improvements effected to the residential erf. Should this sale terminate for any reason prior to transfer, the Purchaser shall be obliged to vacate the residential erf immediately upon such termination.
7.TRANSFER
7.1Transfer shall be effected by the Conveyancers within a reasonable time after the conditions laid down by the Development Tribunal have been satisfied and the Purchaser has:
7.1.1furnished the guarantee envisaged in clause 4.2 above;
7.1.2furnished all the information necessary for transfer;
7.1.3signed all transfer documents;
7.1.4paid all amounts for which the Purchaser is liable in terms of this agreement, inclusive of the rates, taxes, levies and costs of transfer and any penalty interest payable to the Seller.
7.2The Purchaser shall furnish all information and sign such transfer documents as may be required by the Conveyancers immediately on being called upon to do so and in the event of the Purchaser failing to do so within 7 (seven) days of the request of the Conveyancers, penalty interest shall accrue to and in favour of the Seller on the full purchase price as provided for in clause 10 below, without prejudice to the Seller’s rights in terms of clause 18.
7.3The attention of the Purchaser is drawn to the fact that the Seller shall, for expediency purposes, be lodging transactions in batches at times suitable to the Seller and, accordingly, there may be a delay in effecting transfer to the Purchaser. The Purchaser shall not be entitled to cancel this agreement and/or have any claim for damages as a result of such delay.
7.4The Purchaser shall pay to the Conveyancers the costs of and incidental to the registration of transfer of the residential erf to the Purchaser which amount shall be paid on request by the Conveyancers or on the date of signature of the transfer documents, whichever date may be the earlier. In the event that the Purchaser fails to furnish such costs within 7 (seven) days of being called upon to do so, penalty interest shall accrue to the Seller on the full purchase price as provided for in clause 10 below, without prejudice t the Seller’s rights in terms of clause 18.
7.5The Purchaser acknowledges that the boundaries and extent of the residential erf are as per the general plan. In the event of a conflict between the description of the residential erf as provided for in Annexure “A” hereto and the general plan, the description of the residential erf as provided for in the general plan shall prevail and the Purchaser shall not be entitled to cancel this agreement in the event of such disparity.
8.MEMBERSHIP OF THE ASSOCIATION AND RELATED DOCUMENTATION
8.1The Purchaser acknowledges that the Association will be constituted in accordance with the order of the Development Tribunal granted in terms of the Development Facilitation Act, 67 of 1995.
8.2A copy of the Association’s Constitution is annexed hereto marked “B”.
8.3The Purchaser acknowledges that he shall be and become a member of the Association upon registration of transfer of the residential erf into his name and shall remain a member for so long as he owns the residential erf.
8.4The Purchaser hereby agrees to abide by the Association’s Constitution and the Conduct Rules as may be imposed from time to time. This clause is a benefit given by the Purchaser in favour of the Seller and a third party, namely the Association, and shall be binding by and between the Association and the Purchaser and its successors-in-title.
8.5Should the Purchaser sell the residential erf he shall ensure that the Purchaser is made fully aware of the Association’s Constitution and the obligations as detailed in clause 8.4 above.
8.6The Purchaser shall not be entitled to sell, donate, grant any option or pre-emptive rights in respect of, alienate, transfer or in any way deal with the residential erf without the prior written consent of the Association, which shall not be unreasonably withheld.
8.7The following clause, or such variation thereof as may be required by the Conveyancers in order to protect the rights of the Association, will be inserted as a condition in the Title Deed of the residential erf:
“The residential erf shall not be sold or transferred without the prior written consent of the Giant’s View Estate Homeowners’ Association and/or its successor-in-title, of which the Transferee (or his or her successor-in-title) shall become a member, which consent shall not be unreasonably withheld.”
8.8By virtue of his membership of the Association, the Purchaser will be obliged to make payment of levies to enable the Association to maintain the common roads and areas, private open space and services (if any) and to cover its administrative costs, and the Association shall not be obliged to give the written consent referred to in clause 8.7 above until all amounts due to it by the Purchaser have been paid in full.
8.9The Purchaser, by signing this agreement, is deemed to have agreed to all the terms and conditions as contained in the Constitution (and any amendment thereto) and to be bound thereby.
9.SALE “VOETSTOOTS”
9.1The residential erf is sold voetstoots, subject to all conditions and servitudes whether or not mentioned or referred to in the current or prior title deeds, and subject to the conditions of subdivision, and the Seller shall not be liable for any defect, latent or otherwise.
9.2The Seller shall not profit by any excess nor shall the Seller be answerable for any deficiency in the area of the residential erf that may be revealed on any resurvey unless material in extent.
9.3The Seller shall be responsible for pointing or indicating the position of any surveyor’s beacons or pegs in respect of the residential erf.
9.4If the residential erf has been erroneously described herein, such mistake or error shall not be binding upon the parties but the correct description as intended by the parties shall apply, and they shall effect rectification of this agreement accordingly.
9.5The Seller shall not be nor does it accept liability for loss or damage of whatsoever nature and whether directly or indirectly arising from or caused by subsidence or faults in the earth as a result of any bulk earthmoving work undertaken on the land, and the Purchaser waives all and/or any rights to claim against the Seller in respect thereof. The cost of any special foundation measures shall be for the Purchaser’s account.
9.6The Purchaser acknowledges that he may suffer inconvenience from building operations conducted upon erven being sold by the Seller in the immediate surrounds and from noise and dust resulting therefrom, or, alternatively, from the installation of services in the event of the Seller phasing the installation of the required services and the Purchaser shall have no claim whatsoever against the Seller, nor shall the Purchaser be entitled to the cancellation of this agreement or any reduction in the purchase price or interest thereon by reason of such inconvenience.
10.INTEREST AND PENALTY INTEREST
10.1In the event that any amount due in terms of this agreement is not paid on due date, interest shall accrue and be charged at the prime rate charged by Investec Bank Limited plus 1% (one percent) thereon, from time to time.
10.2Such interest shall accrue from the date that payment is due until the actual date of payment of such amount (both days inclusive) and shall be paid by the Purchaser to the Seller prior to the transfer of the residential erf.
10.3The provisions of clause 10.1 and 10.2 above shall apply in the event that the Purchaser fails to timeously deliver the guarantee required in terms of clause 4 above, or timeously comply with his obligations in terms of clause 7 above.
10.4The provisions set out in clauses 10.1, 10.2 and 10.3 above shall in no way prejudice the rights of the Seller to give notice and take whatever other steps and remedies as are available in terms of clause 18 below.
10.5A certificate by the Manager of any branch of Investec Bank Limited, whose authority it shall not be necessary to prove, shall constitute prima facie proof of the prevailing prime rate of interest from time to time as specified therein.
11.PURCHASER’S LIABILITY FOR LEVIES
The Purchaser shall be liable for all levies due in respect of the residential erf, as determined by the Association from the first day of the month following the date of transfer.
12.OBLIGATION TO BUILD
12.1The Purchaser undertakes to erect a dwelling house on the residential erf, unless one that meets the standard set out in the Giant’s View Estate Architectural Code is already in place.
12.2The Purchaser (including, without limitation, any and/or all the subsequent purchasers of the residential erf) shall be obliged to complete building work within 5 years of the date of transfer.
12.3The Purchaser shall not be entitled in any way to donate, sell, exchange or in any way alienate the residential erf without the prior written consent of the Seller (which shall not be unreasonably withheld), until such time as a dwelling house has been erected on the residential erf as envisaged in this agreement.
12.4In the event of the Purchaser failing or neglecting to erect or complete a dwelling house on the residential erf purchased within the time period stipulated in 12.2 above, the Seller shall have the right, but shall not be obliged, at any time after the expiry of such time periods (by written notice to the Purchaser’s chosen domicilium citandi et executandi in terms of clause 19), to re-purchase the residential erf from the Purchaser on the following terms and conditions:
12.4.1the Purchase price shall be calculated as follows:
12.4.1.1should there be no improvements on the residential erf, the purchase price shall be an amount equal to the purchase price at which the Purchaser acquired the residential erf less the VAT portion of the purchase price paid by the Seller in respect of the sale to the Purchaser, and less the costs of transferring the residential erf back to the Seller (including transfer duty), and less any contributions owing to the Association, together with outstanding rates and taxes and/or any municipal services and/or monies due and owing to the local authority;
12.4.1.2should the residential erf have been improved, the purchase price shall be an amount equal to the purchase price at which the Purchaser acquired the residential erf, less the VAT portion of the purchase price paid by the Seller in respect of the sale to the Purchaser, plus the reasonable cost to the Purchaser of the improvements or the reasonable value of the improvements as they stand, whichever is the lower, less the costs of transferring the residential erf back to the Seller (including transfer duty) and less any contributions owing to the Association together with outstanding rates and taxes and/or any municipal services and/or monies due and owing to the local authority, provided that the reasonable cost or the reasonable value of the improvements shall be determined by a quantity surveyor appointed by the Seller, whose decision shall be final and binding on the parties and who, in arriving at such decision, shall have acted as an expert and not as an arbitrator;