The I purchased a house. Now the seller wants to cancel the sale. What can I do?

Purchasing immovable property (e.g. a house or vacant land) comes with a bundle of paperwork and processes. This is the case whether you are purchasing the property with a mortgage bond, or cash up front. There is the deed of sale, transfer documents, and other documents that must be signed. Rates must be paid, as well as various inspections (electrical, water, gas and electric fence). However, once you sealed the deal, obtained finance, paid who must be paid, and obtained the necessary approvals; you want the sale to go through, and take occupation.

However, you may find yourself in the unfortunate situation where you purchased immovable property and the seller refuses to sign the necessary documents to effect transfer of the immovable property onto your name? In other words, the bond is approved and you are now waiting for the seller to sign the transfer documents. An even worse situation would be, you purchased immovable property at a bargain, signed the sale documents, obtained a mortgage bond with a great rate, and then the seller says he or she cancels the sale agreement?

Now the question is posed, can they do that? Can one of the parties who entered into a valid deed of sale of immovable property decide to renege (go back on) the agreement? The answer is no. It is not allowed for a party to unilaterally cancel an agreement. Read more to find out what you can do to enforce your rights as a purchaser of land.

What can I do if the seller does not want to co-operate

There are many reasons why a seller would decide to go back on a written deed of sale. One reason could be that he found a purchaser who is willing to pay more. Another reason could be that he feels that he sold it for too little, and can find a higher bidder. Whatever the reason, if you as the purchaser want to go ahead with the sale, you have legal recourse. In other words, you can take it to court. Most of the time, the deed of sale would stipulate who the transferring attorney is. They would also be the ones with all the transfer documents prepared, ready for the signature of the seller.

Send a letter of demand

If you find yourself in the situation where the seller does not want to co-operate with the finalisation of sale, seek legal advice immediately. On their advice, either you or your legal representative should send the seller a letter. This should be send preferably via registered mail, or through the sheriff’s office. The content of the letter would be advising the seller of the fact that he sold the property to you, and that he should sign the necessary documents which can be found at the transferring attorney’s offices.

You would further advise the seller that should he fail to co-operate, that you would approach the court for relief, for which legal costs the seller would be ordered to pay. Usually, this letter of demand is enough to enforce compliance with the deed of sale. The time period you may give the seller to sign the documents is between 7 to 14 days.

A Court Application to compel compliance

The seller may however notwithstanding the letter of demand, fails to visit the offices of the transferring attorneys to sign the transfer documents. In this case, your legal recourse is to approach the High Court for relief. Your or your attorney would draft a Notice of Motion, supported with a Founding Affidavit. What you would ask the court in the Notice of Motion is the following:

• An Order that the seller sign all the necessary documents which can be obtained from the transferring attorneys. This is in order to effect transfer of the property onto your name, as purchaser; and
• Should the seller fail to sign the documents necessary for transfer of the property within 7 (seven) days of the granting of an Order for the seller to do so; then the Sheriff of the court would be authorised to sign all the necessary documents on the seller’s behalf to effect transfer of the property onto your name; and
• The seller is to pay the costs of the court application.

In your Founding Affidavit, you would stipulate that you entered into a sale agreement. You would further stipulate that the seller refuses to co-operate in finalising the sale. In other words, the seller refuses to sign the transferring documents on his side.

What happens if the seller opposes the application to compel him or her to sign the transfer documents?

Should the seller wish to oppose the court application to compel him or her to sign the relevant transferring documents, he or she will have to file an Opposing Affidavit. In this Opposing Affidavit, the seller will have to stipulate the reasons for his or her refusal to sign the transfer documents. The seller should also stipulate reasons as to why the court should not order him or her to sign it the transferring documents.

The purchaser would then have an opportunity to file a Replying Affidavit which would deal with whatever new matter mentioned in the seller’s Opposing Affidavit. Once the court read all the affidavits before it, and listened to arguments for the seller and purchaser, will the court make a ruling. The ruling could either be the force the seller to sign the necessary transfer documents, or dismiss the application. The dismissal would be for lack of merit.

What happens after you obtain the court order?

Should all go well at court, which it should, the seller would have 7 days to sign the necessary documents which should be at the transferring attorney’s offices. If the seller signs it, then the process proceeds as normal. Should the seller fail to sign the documents within 7 days, then the sheriff of the court would be called upon to sign the documents. This he would do on the seller’s behalf. After the sheriff signed the documents, the process proceeds as normal.

The legal costs

Should the purchaser be successful in his or her court application, the court would more than likely order that he or she pay the legal costs occasioned with the application. This is so, seeing that the seller forced you to make the application to court and to incur attorney and advocate costs. The purchaser may be unsuccessful in his or her application to compel the seller. Should that happen, the purchaser may be ordered to pay the seller’s legal costs.

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