Signatories to a Deed of Sale

Having entered into a deed of sale, i.e. having accepted an offer to purchase presented by a real estate agent or a purchaser, a seller most certainly does not want to discover afterwards that the deed of sale lacks a vital further signature by the purchaser or that the signatory did not have the authority to make an offer on his/her own, thus leaving it null and void. Similarly, a purchaser would not want to “lose” a property merely because the seller’s signatory had no authority to accept an offer on behalf of a spouse with whom he/she is married in community of property or to accept an offer on behalf of a legal entity (company, close corporation or trust).

It is therefore essential that parties take special care when making or accepting an offer to purchase and that they seek legal guidance in the event of any degree of uncertainty as to the correct signature thereof.

SIGNATURE BY THE RESPECTIVE PARTIES 

• If a person who makes or accepts an offer is single or married out of community of property, i.e. in terms of an ante-nuptial contract, his/her full names, identity number and marital status should be stated and only his/her signature is required. 

• In the case of a minor, this has to be stated as well as the fact that he/she is being assisted by his/her legal guardian who will have to countersign the offer/deed of sale, either as a potential purchaser or as the seller. It is recommended that the full names and identity numbers of both the minor and his /her guardian are reflected in the offer/deed of sale.

• If a person is married in community of property, i.e. without an ante-nuptial contract, both spouses have to sign/accept the offer and should supply full names, identity numbers and state the fact that they are married to each other in community of property.

• Should a person represent a legal entity, i.e. a company, close corporation or a trust, as seller or purchaser, the offer/deed of sale must reflect the entity’s correct name (preferably the registration number as well), the fact that the signatory is signing in a representative capacity AND that he/she is duly authorized thereto by virtue of a resolution signed by ALL the directors/members/trustees of the entity, a copy of which should be attached to the offer/deed of sale. 

• If a person signs an offer to purchase/deed of sale on behalf of an individual by virtue of a General or Special Power of Attorney granted to him/her by such individual, then the full names (and preferably the identity numbers) of both the individual and the authorized representative have to be provided together with appropriate wording to the effect that the offer is being made or accepted in a representative capacity. In such an event the signatory will not assume any rights or obligations in his/her personal capacity. The marital status of the representative is not required.

OF PARTICULAR IMPORTANCE TO PURCHASERS 

• It IS possible to make an offer on behalf of a company or close corporation still to be registered. In such an event the offer must clearly state that the signatory is acting in his/her capacity as trustee for the entity still to be registered in which event the signatory will not assume personal liability. However, a well-advised seller will insist on the entity being registered and the sale ratified within a specific time frame failing which the signatory in his/her personal capacity will become the purchaser. The seller should also ensure that once the entity is registered, and the sale ratified, the signatory binds him/herself as surety for compliance by the entity of its obligations.

• It is NOT possible to make an offer on behalf of a trust still to be registered. The trust has to be in existence and a copy of the formal Letters of Authority, issued by the Master of the High Court empowering the trustee/s to act on behalf of the trust, should be attached together with a resolution signed by all the trustees of the trust.

• Nomination of a third person/entity in an offer to eventually take transfer of a property is almost no longer an option. The South African Revenue Services (SARS) insist on strict compliance with Section 16 of the Transfer Duty Act in terms of which the nominee has to accept the nomination on the very same day of being nominated making it totally impractical, if not impossible, in the majority of cases.