SECTIONAL TITLE UNIT
DEVELOPER TO THIRD PARTY
SECTION NO. _____ THE ORCHARDS
MEMORANDUM OF AGREEMENT
between:
Name
PIERRE DE VILLIERS BERRANGE, he being duly authorized thereto by a resolution of the Directors of
CEDAR FALLS PROPERTIES 25 PROPRIETARY LIMITED Registration Number: 2005/013860/07 (the "SELLER") Postal Address P O BOX 2838 PIETERMARITZBURG 3200 Physical Address
Suite 1, The Mews
Redlands Estate, 1 George Macfarlane Lane PIETERMARITZBURG
3201
Telephone No. 033 – 3455331 Facsimile No. 033 – 3455824 E-Mail Address [email protected]
VAT No. 4600221487
AND
_____________________________________________________________________________________________________
Identity/Registration No. ________________________________________________________________________________ Marital Status (if the PURCHASER is an individual)
Unmarried/Widowed/Divorced MOCP (WITH ANC) MICP OTHER __________________________________ (the "PURCHASER") Postal Address _________________________________ _________________________________ _________________________________ _________________________________
Current Physical Address Future Physical Address (after registration)
_________________________________ ______________________________________ _________________________________ ______________________________________ _________________________________ ______________________________________ _________________________________ ______________________________________
Telephone No. ___________________________ (Landline) __________________________________ (Cel)
Facsimile No. ____________________________________ Income tax/VAT No. _______________________________
E-Mail Address __________________________________________________________________________________
WHEREAS:
A. The Seller is in the process of erecting a Sectional Title development on the hereinafter described Land consisting of not more than 120 residential dwelling Units;
B. The Seller intends applying in terms of the provisions of The Sectional Titles Act No. 95 of 1986 (as amended) for the opening of Sectional Title Registers in phases in respect of the Buildings once they have been completed and are ready for occupation;
C. The Purchaser wishes to purchase from the Seller the hereinafter described Unit to be established in terms of The Sectional Titles Act in respect of the building development.
NOW THEREFORE IT IS AGREED:
1. Definitions
In this agreement unless the context otherwise indicates:
1.1 "Act" means The Sectional Titles Act No. 95 of 1986 and regulations made in terms of that Act. 1.2 "Buildings" means the buildings to be erected on the undermentioned Land.
Redlands Estate
1 George Macfarlane Lane Pietermaritzburg
Contact person Ginette Chubb
Telephone No. 033 – 3455331
Facsimile No. 086 511 6319
E-Mail Address [email protected]
1.4 “Developer” means the Seller.
1.5 “Development Period” means the period during which the Developer continues to own any portion of the Estate.
1.6 "Development/Sectional Scheme" means the Sectional Title Scheme to be registered in accordance with the provisions of the Act in respect of the land and buildings and to be known as THE ORCHARDS.
1.7 “Estate” means St Johns Village, to be developed on Proposed Erf 3298 (being a re-designation of Portion 161 (of 159) of the Farm Stocklands and Oatlands No. 878) in extent approximately 161,5 hectares.
1.8 “Estate Agents” means ____________________________________________________________________ 1.9 “Homeowners’ Association” means St Johns Village Homeowners’ Association NPC (Association incorporated
under the Companies Act No. 71 of 2008)
1.10 "Land" means the land described as Proposed Erf 3847 Howick in extent approximately 5,8607 hectares. 1.11 "Land Surveyor" means Symington Trench & Geyser.
1.12 "Plans" mean the site plan being Annexure "SA" hereto; the building plan of the Unit being Annexure "SB" hereto and the schedule of finishes being Annexure "SC" hereto, all of which shall be initialled by the parties and form part of this agreement.
1.13 "Rules" means the Management and Conduct Rules referred to in the Act as supplemented by Additional Rule 72 set out in the annexure hereto marked "SD”
1.14 "Section" means the section comprised in and forming part of the Unit.
1.15 "Sectional Plan" means the draft Sectional Plan to be prepared by the Land Surveyor in respect of the buildings comprised in the development scheme.
1.16 "Unit" means the section purchased by the Purchaser from the Seller together with the undivided share in the common property.
1.17 Words and expressions used shall bear the meaning assigned to them.
1.18 Words importing the masculine gender shall incorporate the feminine and neuter genders and vice versa. 2. Sale
The Seller hereby sells to the Purchaser who hereby purchases the Unit to be established in terms of the Act in respect of the development scheme comprising:
buildings being erected and to be known as THE ORCHARDS of which section the approximate floor area is _______ square metres in extent.
2.2 An undivided share in the common property of the land and buildings being erected, as shown and more fully described on the said Plans apportioned to the said section in accordance with the participation quota of the section as specified on the schedule annexed to the sheets of the draft Sectional Plan, which participation quota will be adjusted as the Seller extends the scheme in terms of Section 25 of the Act.
2.3 A proposed Exclusive Use Area described as ________________ measuring approximately ______ square metres, being as such part of the common property, comprising the land and the scheme known as THE ORCHARDS
3. Purchase Price and Method of Payment
3.1 The purchase price for the Unit shall be R_____________________________________________ which shall be inclusive of VAT and which shall be payable in the following manner:
3.1.1 Cash deposit R______________________________________________ in terms of Clause 3.2 below 3.1.2 Loan R______________________________________________ in terms of Clause 3.3 below 3.1.3 Cash balance R______________________________________________ in terms of Clause 3.4 below 3.2 The deposit referred to in Clause 3.1.1 is to be paid to the Conveyancers within 7 (Seven) days of acceptance
of this agreement by the seller, into the following trust account: Berrange Incorporated Trust Account
Bank: Nedbank Limited Branch code: 134 025 Account number: 134 036 9362 Reference : ___ Orchards/surname
Should same not be paid, in full, within the said 7 (Seven) day period, this agreement shall lapse, without further notice, with immediate effect. In this event, any part payment made towards the deposit shall be forfeited to the seller as envisaged in clause 16.1.2 below.
3.3 The amount referred to in Clause 3.1.2 shall be paid to the Seller upon registration of transfer and shall be provided by the raising of a bank loan on the security of the property hereby sold. This entire agreement is subject to the condition that the Purchaser is able to arrange a loan in the amount referred to in clause 3.1.2, in principle, on usual bank terms and conditions, within 30 (Thirty) days of signature hereof by the Seller. The Purchaser agrees and undertakes to take all steps and sign all documents reasonably necessary to give effect to this clause.
3.3.1 Should such loan not be granted in principle by due date, this agreement shall automatically fail and be of no further force or effect whatsoever.
3.3.2 The condition contained in Clause 3.3 has been inserted for the benefit of the Purchaser, and can be waived by him provided that such waiver is contained in writing and lodged with the Agents before the date referred to above.
3.3.4 The Purchaser warrants that he is aware of the financial requirements of the bank relating to the mortgage bond that is to be applied for, and undertakes, to the best of his ability, to immediately provide, upon request by the relevant bank concerned, all information and other documentation which may be required by it in order to approve his loan application.
3.3.5 The Purchaser warrants that there is no existing judgment noted against his name which would preclude any financial institution from approving his loan application.
3.4 The balance of the purchase price, as referred to in Clause 3.1.3, shall be paid, in cash, into the Conveyancers Trust Account, or shall be secured by such guarantee or guarantees as the Seller may require, which cash or guarantee/s shall be paid to / lodged with the Conveyancers within 14(Fourteen) days of written request therefor by the Conveyancers.
3.5 The Purchaser hereby instructs and authorizes the Conveyancers to invest (subject to clause 7.3.4), in terms of Section 78 (2A) of the Attorneys Act, Act 53 of 1979 (as amended), any monies paid by him or on his behalf in terms of this Agreement, in an interest bearing account, account pending registration of transfer, or cancellation in terms of Clause 16, as the case may be, interest so accrued for the benefit of the Purchaser.
3.6 It is recorded that the Seller is a VAT vendor (with VAT registration number 4600221487) for the purposes of the sale of the Unit in terms of this agreement, at the current rate of 14% (Fourteen Percent). The parties agree that, should there be any change in the Value Added Tax rate applicable at the time of supply, as determined in accordance with the Value Added Tax 89 of 1991, the purchase price shall be amended to take into account the adjustment in the Value Added Tax rate.
3.7 Unless otherwise provided, all payments hereunder shall be made without deduction or demand to the Seller at the offices of the Conveyancers. All bank charges incurred by the Conveyancers in connection with this transaction shall be for the account of the Purchaser.
4. Possession and Occupation
4.1 Possession and occupation of the Unit shall be given by the Seller and taken by the Purchaser as follows: 4.1.1 where the Unit is not yet complete as at date of signature by the Seller of this agreement, occupation and
possession shall be given and taken within 60 (Sixty) days of the date of completion of the Unit (namely the date upon with the occupation certificate has been issued to the Seller); OR
4.1.2 where the unit is complete and an occupation certificate has been issued to the Seller in respect thereof, occupation and possession shall be given and taken within 60 (Sixty) days of date of signature by the seller of this agreement.
from which date all risk (including the levies referred to in clause 5 and 11), profit and loss in and to the Unit shall pass to the Purchaser.
4.2 It is anticipated that the occupation date will be ______________________________.
4.3 The Purchaser shall pay to the Seller occupational interest at a rate of 6% (Six Percent) per annum, calculated on the full purchase price referred to in clause 3.1, payable monthly in advance from the aforesaid date of possession until registration of transfer. Should transfer be registered during the course of a month in respect of which the Purchaser has paid full occupational interest for that month, then the Purchaser shall be entitled to a pro rata refund of such resultant overpayment.
5.1 The Purchaser acknowledges that upon transfer of the Unit into the Purchaser's name, the Purchaser will become a member of the Body Corporate. The Purchaser accepts the Unit subject to and agrees to be bound by all the provisions of the Act and the Rules relating to the duties and powers of the Body Corporate, and in particular assumes liability for contributions to the fund to be established for the repair, upkeep, control, management and administration of the common property and for other purposes described in the Act. 5.2 Each Unit carries with it an undivided share in the common property equivalent to the participation quota of the
Section, and the owner of each Unit has an obligation to contribute towards the expenses of the land and buildings within the Sectional Scheme, in accordance with the participation quota. The estimated monthly contribution is/will be R________________________, which shall be payable by the Purchaser, monthly in advance, from the date of registration of transfer or date of occupation, whichever occurs first. The Purchaser acknowledges that the participation quota of the Section comprised within the Unit and as depicted aforesaid, may be varied as a result of any amendment which may be made to the Sectional Plan, and further acknowledges that the participation quota will be reduced when the subsequent phases of the Sectional Title Register are opened and the Sectional Scheme extended.
5.2 The estimated monthly contribution referred to in Clause 5.2 above is based on anticipated expenses, and the Purchaser acknowledges that once the Body Corporate is established levies will be determined by the Body Corporate.
5.3 It is recorded that the levy payable to the Body Corporate is over and above the monthly contribution payable to the Homeowners’ Association to cover costs such as security and the maintenance of the common portions of the Estate, as more fully set out in clause 11.
6. Construction of Buildings
6.1 The construction of all buildings in the Sectional Scheme will be undertaken by the Seller and the Seller shall ensure that buildings are completed substantially in accordance with the Plans.
6.2 The Seller shall have the right, during the period of construction, to effect minor aesthetic alterations and modifications to the Section and to any improvements to be constructed on the exclusive use area allocated to the Section (if any), and to make minor alterations and modifications to the remaining Section, and to other buildings being erected on the Land, and which will form part of the common property, and the Purchaser agrees to accept the Unit comprising such Section with such variations and modifications.
6.3 The Purchaser acknowledges that he shall not be entitled to give any instructions of any nature to the building contractors, subcontractors, the architect or anyone else at the time when occupation of the Unit is given to the Purchaser the building work in respect of the rest of the Sectional Scheme has not been completed, then the provisions of this clause shall apply to the buildings still to be erected, or still in the course of erection, and to those areas of the property where building work is being performed.
6.4 The Purchaser further acknowledges that notwithstanding that occupation of the Unit may be given, that the construction of the infrastructure (including driveways) on the property may not be completed until the erection of all the buildings, provided however that prior to occupation of the Unit, the Seller will provide access to the section for use by the occupants of the Section and their invitees and their vehicles.
6.5 The Purchaser expressly acknowledges having been advised that it is the Seller's intention to develop the Scheme in phases and that the Seller will, at the time of the opening of the Sectional Title Register for the First Phase, be applying for the issue to it of a Certificate in terms of Section 25 of the Act, entitling the Seller to the right to extend the Scheme.
be built in terms of each configuration notwithstanding the plan and estimated participation quota schedule lodged in the Deeds Registry by virtue of Section 25 of the Act. The Purchaser acknowledges that the Seller's right will not be prejudicial to the Purchaser and undertakes not to make application to Court as provided for in Section 25(13) of the Act. The Purchaser furthermore acknowledges that in granting authority for the re-sale of the Unit by the Purchaser, the Seller shall be entitled to call upon the party acquiring the Unit to waive his rights as aforesaid.
6.7 In the event of the Purchaser utilising his own sub-contractors for any part of the construction of the Unit, or should the Purchaser purchase any materials from suppliers other than those nominated by the Seller, the Purchaser shall not be entitled to delay payment of the purchase price as a result of any delays in the completion of the construction of the Unit.
7. Transfer
7.1 Transfer of the Unit shall be attended to by the Conveyancers, as appointed by the Seller, and all expenses incidental to the preparation and registration of transfer of the Unit and the cession of any Exclusive Use Areas and the Conveyancers' fees in respect of such transfer/cession, shall be borne by the Purchaser. 7.2 The Purchaser undertakes to sign the transfer documents within 7 (Seven) days of being called upon to do so,
and to pay the pro forma conveyancing account of the said Conveyancers within 7 (Seven) days of receipt thereof.
7.3 The PURCHASER acknowledges that:-
7.3.1 In the event that, at the date of signature hereof, the Land on which the scheme is to be developed forms part of an unproclaimed private township, the Purchaser acknowledges that the scheme can only be opened once the township has been formally declared and a Certificate issued in terms of Section 38(1) of the Development Facilitation Act No. 67 of 1995 as amended.
7.3.2 The Seller will not be in a position to give transfer of the Unit to the Purchaser until such time as the buildings which comprise the Unit have been completed, and the Sectional Plan relating thereto has been registered in the Deeds Office, Pietermaritzburg;
7.3.2 Subject to the Sectional Plan aforesaid having been registered, the Purchaser shall be entitled to transfer when, and not until, the full purchase price has been paid and/or secured to the satisfaction of the Seller, and the transfer costs referred to in Clause 7.1 hereof have been paid.
7.3.3 The Seller shall in no way be liable to the Purchaser for any delay in effecting registration of transfer of the property into the Purchaser’s name.
7.3.4 The Conveyancers are designated as an “accountable institution” in terms of the Financial Intelligence Centre Act No. 38 of 2001 (“FICA”). Certain obligations are placed on the Conveyancers in terms of FICA and the Prevention of Organized Crime Act No. 21 of 1998 (“POCA”) and the Regulations promulgated in terms thereof. The Conveyancers shall not invest and administer any deposits or any other monies paid by the Purchaser in terms of this agreement, unless the Purchaser has provided the Conveyancers with the documents that they require in terms of FICA. Accordingly the Purchaser undertakes to comply with all requirements of and supply all information and documentation required by the Conveyancers, within 7 (Seven) days of written request therefore, to enable the Conveyancers to fulfill their obligations in terms of FICA and POCA and the Regulations promulgated in terms thereof.
8. Insurance
company selected by the Seller against such risks and perils as the Seller may require, for such sums as the Seller may determine, but substantially in accordance with the provisions of the Management Rules of the Body Corporate. From date of registration of transfer, the Purchaser shall ensure that the Section is insured by the Body Corporate.
9. Registration of Sectional Plans
9.1 The Seller shall have the right, without notice to the Purchaser, to effect such minor alterations to the Sectional Plans as are necessary or desirable in order to obtain registration thereof, and the Seller shall procure the registration of the Sectional Plans.
9.2 If the Seller has not obtained the opening/extension of the Sectional Title Register which relates to the Unit hereby sold within a period of 12 (Twelve) months from the date of occupation, then the Purchaser shall at any time thereafter, have the right to cancel this sale by giving written notice thereof to the Seller, in which event the Purchaser shall forthwith restore possession and occupation of the Unit to the Seller or his nominee. Against such restoration, the Purchaser shall be entitled to a refund of all payments made by the Purchaser in respect of the capital amount of the purchase price plus interest earned on any portion of the purchase price held in trust. Neither party shall have any claim of any nature whatsoever against the other arising out of such cancellation, provided the Unit is returned to the Seller in a condition which is similar to that in which it was on the date of occupation, fair wear and tear excepted.
9.3 All costs of and incidental to the approval and registration of the Sectional Plans, the opening of the Sectional Title Register for all phases, the issue to the Seller of the Certificates of Registered Sectional Title for the Units referred to in the Sectional Plans, shall be paid by the Seller.
10. Conditions of Title and Ownership
The Unit is sold:
10.1 Subject to and in accordance with the Plans and the Sectional Plan and the participation quota endorsed thereon, and any modifications or alterations which may be made thereto from time to time in accordance with the provisions of this agreement or the Act.
10.2 Subject and entitled to the servitudes for support and for essential services referred to in the Act. 10.3 Subject to the conditions of title contained in the Title Deeds of the Property.
10.4 Subject to the conditions contained in the Schedule referred to in Section 11(3)(b) of the Act. The Seller warrants that the aforesaid schedule shall contain only:
10.4.1 the existing Title conditions relating to the land;
10.4.2 any conditions imposed by the local authority when approving the Sectional Plans;
10.4.3 conditions imposed by the Seller as developer relating to the reservation of the right to extend referred to above, and also the right to vote at meetings of members on behalf of Purchasers until such time as the Scheme has been completed. Such right to vote shall be restricted to matters relating to proposed amendments of the Management and Conduct Rules;
10.4.4 the condition imposed by the Seller in terms of which the Unit shall not be disposed of, leased or transferred without the written consent of the Homeowners’ Association first being had and obtained, and that the Unit may not be consolidated with any other Unit in the Scheme or be further subdivided without the prior written consent of the Association.
those portions on which Units have been constructed or which have been allocated as exclusive use areas. 11. Homeowners’ Association
11.1 The Purchaser acknowledges that the Unit forms part of a Sectional Title Scheme which is established within the Estate. The Estate is managed and controlled by the Homeowners Association, which will also be the registered owner of certain communal land and facilities within the Estate.
.
11.2 The Purchaser acknowledges, by his signature on this agreement, that he shall be obliged to become, and to remain, for the duration of his ownership of the Unit, a member of the Homeowners’ Association (the Association within the meaning of and subject to the conditions set out in the Homeowners’ Association’s Memorandum of Incorporation), and undertakes that he and all persons deriving use of the Estate or any part thereof through him will, from the date of occupation/transfer (whichever occurs sooner), duly comply with all the obligations imposed upon members under the Homeowners’ Association’s Memorandum of Incorporation, including the obligation to pay a monthly levy to the Homeowners’ Association (over and above the body corporate levy referred to in clause 5), the amount of which is to be determined, from time to time, by the directors of the Homeowners’ Association. The monthly levy, for the time being, will be calculated at R5,00 per square metre of the Section. The estimated monthly levy is/will be R______________________________.
11.3 The levy referred to in clause 11.2 shall not cover any rates and taxes, the consumption of water and electricity, sewerage, or the maintenance of the improvements on the properties. The said expenses shall be for the account of the purchaser.
11.4 The parties record that no Homeowners’ Association levies, as referred to in 11.2 above, will be raised on the Unit prior to 31 December 2015. The Purchaser, however, acknowledges that he will still be liable for the insurance premium on the Section, as provided for in clause 8.
11.5 The Purchaser shall pay a once-off, non-refundable Levy Stabilisation Fee, in an amount equivalent to 0.5% (Nought comma Five Percent) of the purchase price of the Property, to a levy stabilisation fund, which amount shall be payable by the Purchaser, to the Conveyancers, within 7 (seven) days of written request therefore, who in turn will pay same over to the Homeowners’ Association on registration of transfer into the Purchasers name. All subsequent purchasers of any property shall be obliged to pay this amount to the fund or such amount as the Directors of the Homeowners’ Association may determine from time to time.
11.6 The Purchaser acknowledges that the Homeowners’ Association will be entitled, at all times, to impose rules regarding the management of the Estate and the Conduct of its members. In this regard, the Purchaser acknowledges that copies of the Memorandum of Incorporation of the Homeowners’ Association, the Conduct Rules, the Architectural Guidelines and Landscaping Guidelines were made available to him prior to his signing this agreement, as provided for in clause 25 below.
11.7 The Purchaser acknowledges in particular, the provision in the Conduct Rules which deals with occupation of the Unit, and which dictates that no Unit/Dwelling in this Sectional title scheme (The Orchards) may be occupied, on a permanent basis (as defined in the Conduct Rules), by any persons under the age of 55 (Fifty Five) years.
11.8 The Seller in developing the Estate will install certain security systems, facilities and procedures, and will assign to the Homeowners’ Association the responsibility for maintaining and operating such systems. 12. Voetstoots
no warranties or representations have been made or given by the Seller or anyone on its behalf, whether express or implied, whether in respect of the buildings, the Unit, the section, the common property or otherwise.
12.2 Notwithstanding the aforegoing, the Seller shall make good any defect or other fault in the Unit which arises from faulty materials or workmanship, and which appears or occurs within a period of 30 (Thirty) days from the date of occupation, provided that notice thereof is given in writing by the Purchaser to the Seller within the said period of 30 (Thirty) days. Such undertaking by the Seller shall extend to any leaks which occur in the roof, windows and doors within 10 (Ten) days of the first substantial rainfall after the date of occupation.
Any dispute between the Seller and the Purchaser which arises as to:
12.2.1 whether or not any of the aforegoing defects is due to faulty materials or workmanship on the part of the Seller;
12.2.2 the nature of the remedial work to be undertaken;
12.2.3 whether or not such remedial work has been properly completed;
shall be determined by an architect acceptable to both parties, or failing this appointed by the Institute of Architects of the Province of Kwazulu-Natal, whose determination (as an expert and not as an arbitrator) of the dispute shall be final and binding on all interested parties.
12.3 The following are specifically excluded from being obligations of the Seller in respect of defaults after completion: 12.3.1 low or variable water main pressure;
12.3.2 defects caused by storms or surface water, the diversion of which the Purchaser acknowledges to be his responsibility, or underground water, geological disturbances or blasting, or any condition attaching to the state of the ground or subsoil upon which the building is erected, or normal settlement;
12.3.3 defects in items supplied by parties nominated by the Purchaser, whether provided for under provisional sums or otherwise, and effects caused in consequence thereof;
12.3.4 defects caused by normal shrinkage or expansion of materials, or due to fair wear and tear, misuse, negligence or abuse on the part of the Purchaser or others, or due to accident or any risk insured against in terms of Homeowners Insurance policies normally issued by leading South African insurance companies in respect of residences;
12.3.5 the repainting of the Unit or any part thereof in the event of the Purchaser having chosen to have the Unit painted with any colour other than white.
12.4 The Seller shall not be responsible for the payment of special or consequential damages arising out of any defects in any buildings or part of the development scheme, including the Unit.
13. Rules applicable to the Sectional Title Scheme
13.1 The Seller warrants at the time of the opening of the Sectional Title Register for the First Phase of the Scheme, to adopt the Management Rules set out in Schedule 8 of the Regulations to the Act with the addition of further rules, as will more fully appear on the annexure hereto marked "SD", and the Conduct Rules referred in clause 11.2 above. The purchaser acknowledges, in particular, the provision in the Conduct Rules which deals with occupation of the Section, as more fully set out in clause 11.7 above.
Sectional Title Register.
13.4 The Purchaser irrevocably and in rem suam appoints the Seller for so long as the Seller remains the holder of any Real Right of Extension in respect of the Scheme as his duly appointed attorney, agent and proxy, and on his behalf and to his exclusion to attend all meetings either special or general of the Body Corporate, and then and there to do all such things as are necessary to vote against any proposed amendment of any Management or Conduct Rules.
14. General Obligations
Prior to registration of transfer of the Unit into the Purchaser's name:
14.1 The Purchaser shall not make any structural alterations or additions to the Unit without the prior written consent of the Seller which shall not be unreasonably withheld.
14.2 The Purchaser shall:
14.2.1 keep the section in good repair and permit the Seller or its agents at all reasonable times to enter and inspect it. Should the Purchaser fail to comply with the aforegoing obligation, the Seller may at the Purchaser's cost and expense, expend any sum in repairing and maintaining the section, and recover such costs and expenses from the Purchaser upon demand, in addition and without prejudice to any other remedy available to the Seller;
14.2.2 punctually comply with the provisions of all statutes and regulations applicable to the land and buildings;
14.2.3 comply with the Rules notwithstanding that they may not be in force and effect.
15. Mora
15.1 In the event of there being any delay in connection with the registration of transfer for which the Purchaser is solely responsible, the Purchaser undertakes, in addition to any other payment due hereunder, to pay interest to the Seller at the prime overdraft rate levied by Investec Bank Limited, from time to time plus 2% (Two Per Centum) per annum on the full purchase price calculated from the date that the Purchaser has been notified in writing by the Seller as being in mora, to the date upon which the Purchaser ceases to be in mora.
15.2 For the purposes of Clause 15.1, the Purchaser shall be deemed to be responsible for any delay in the registration of transfer which is caused by a failure on the part of the institution from which he obtains mortgage finance, or any conveyancer appointed by such institution, to procure the issue of guarantees as contemplated in Clause 3.3.3 or to lodge documents with the Registrar of Deeds when called upon to do so. 16. Breach
16.1 In the event of the Purchaser being in breach of any of the terms or conditions contained herein, and remain in default for 7 (Seven) days after dispatch of a written notice by registered post or by facsimile requiring him to remedy such breach, the Seller shall be entitled to, and without prejudice to any other rights available at law:
16.1.2 cancel the agreement, and retain all amounts paid by the Purchaser as “Rouwkoop” and the Purchaser hereby authorises the Conveyancers or any other third party holding such monies to pay the same to the Seller, and/or
16.1.3 cancel the agreement and claim damages from the Purchaser, which damages shall include, but not be limited to, the costs and expenses of advertising and selling the Unit to a third party, 16.2 In the event of the Seller instructing its Attorneys to institute any proceedings against the Purchaser for
payment of the purchase price, interest and other monies due by the Purchaser hereunder or for the specific performance by the Purchaser of any of the terms and conditions herein, then the Purchaser agrees that he shall be liable for and shall pay any such legal costs on the scale as between the Attorney and own client.
16.3 Any latitude or extension of time which may be allowed by either party shall not be allowed to be a waiver of that party's rights hereunder.
17. Domicilia
17.1 The parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court processes, notices or other documents or communications of whatsoever nature their respective physical addresses referred to in the heading of this Agreement.
17.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
17.3 Any party may by notice to any other party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that party to another physical address in the Republic of South Africa, provided that the change shall become effective vis-à-vis that address on the 7th business day from the deemed receipt of the notice by the addressee.
17.4 Any notice to a party:-
17.4.1 sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the 7th business day after posting (unless the contrary is proved); or
17.4.2 delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery;
17.5 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered to its chosen domicilium citandi et executandi.
18. Agents Commission
18.2 Should the Purchaser fail to carry out its obligations in terms hereof, and as a consequence this agreement is cancelled the aforesaid estate agent shall have the right to, but shall not be obliged, to recover payment of its aforesaid commission from the Purchaser.
18.3 In the event of the aforesaid estate agent instituting action against either the Seller or the Purchaser to give effect to the benefits created herein in its favour, the agent shall be entitled to claim legal costs to the maximum amount permitted by Law.
18.4 In the event of the Purchaser not having completed clause 1.10 of the agreement by inserting the name of an Estate Agent/Agency, the Purchaser warrants that no Estate Agent was responsible for introducing him to the Property and further warrants that no agent will have any claim against the Seller for estate agent's commission arising out of this transaction.
18.5 The Purchaser indemnifies and holds harmless the Seller against any loss, damage or expense sustained, suffered or incurred by the Seller arising out of any breach of the foregoing warranties.
18.6 The provisions of this clause as well as certain other provisions in the agreement, are intended by the Seller and the Purchaser to be a contract for the benefit of the Agents, which may be enforced by the Estate Agents, it being recorded and agreed that the Estate Agents have accepted the benefits hereof by their signature at the foot of this agreement.
19. General
19.1 The parties hereto acknowledge that the Agreement of Sale concluded between the Seller and Purchaser in the event of the acceptance hereof by the Seller, constitutes the entire agreement between them and that no other conditions, stipulations, warranties or representations whatsoever have been made, by either party or that party's agent, other than as specifically included herein. No alteration or amendment to this agreement or any purported consensual cancellation hereof shall be binding unless reduced to writing and signed by the parties.
19.2 No party shall be bound by any representation, express or implied terms or warranty (whether contained in any sales brochure, advertisements or other written document) not referred to herein or reduced to writing and signed by the parties.
19.3 Any extension or extensions of time granted for the making of any payments or other indulgences or concessions granted by the Seller, shall not prejudice any rights of the Seller under this agreement.
19.4 In the event of there being any conflict between the contents of this agreement and the Memorandum and Articles of the Association, the latter shall prevail and the Purchaser shall have no claim against the Seller arising out of such conflict.
20. Purchaser as a Trustee for a Company to be formed
20.1 In the event of the signatory to this agreement on behalf of the Purchaser having concluded this agreement in his capacity as a Trustee for a company to be formed (which signatory is hereinafter in this paragraph referred to as the “Signatory”), then the Signatory by his signature hereto warrants that the said company:
20.1.1 will be formed;
20.1.2 will ratify and adopt the terms and conditions of the agreement; and 20.1.3 will provide the Seller with written proof thereof;
20.2 The Signatory, in his personal capacity hereby under renunciation of the benefits of excussion and division with the full meaning and effect of which he declares himself to be fully acquainted, binds himself and agrees to bind himself as surety and co-principal debtor in solidum with the company to be formed by him in favour of the Seller for the due and punctual performance of such company's obligations to the Seller in terms of this agreement.
20.3 If the terms and conditions of Clause 20.1 above are not fulfilled then the Signatory will by his signature to this agreement be deemed ipso facto to have concluded the agreement in his personal capacity as Purchaser.
21. Consumer Protection Act (CPA)
21.1 It is recorded that the Seller is disposing of the Unit in the “ordinary course of business”, as contemplated in the CPA.
21.2 If the Purchaser is an individual or does not fall within the exemption category referred to in 21.3 hereof, then the provisions of the CPA shall apply to the sale of the Unit in terms of this agreement.
21.3 If the Purchaser is a Juristic Person, and warrants to the Seller that its asset value or annual turnover, at the date of signature of this agreement by the Seller, and the date of transfer, shall equal or exceed the threshold determined by the Minister in terms of section 6 of the CPA (namely, R2,000,000.00 (Two Million Rand) then, as a consequence, the sale of the Unit to the Purchaser in terms of this agreement, is exempt from the provisions of the CPA (save for the provisions of section 60 and 61 of the CPA). It is recorded that the aforesaid warranty is material to the Seller in entering into this agreement. The Purchaser undertakes, within 7 (Seven) days of being requested to do so by the Seller, to furnish the Seller with its last audited financial accounts, and such other financial information in respect of the Purchaser as the Seller may reasonably require, in order to confirm that the Purchaser’s asset value and/or turnover is as warranted in this paragraph above.
22. Re-Sale of Property
22.1 The Purchaser acknowledges that:
22.1.1 should he wish to re-sell the Unit during the development period, then the purchaser shall be obliged to grant a sole mandate to the Developer, or its nominated agent, for a period of 45 (Forty Five) days, as provided for on the Memorandum of Incorporation of the Homeowners’ Association.
22.1.2 only agents approved by the Developer or the Homeowners’ Association shall be entitled to sell Units in the Estate, during the development period.
22.1.3 when selling or letting the Property, the Purchaser shall utilise such documentation (including the standard Sale Agreement and all annexures relevant thereto), prescribed by the Homeowners’ Association.
22.1.4 the conveyancers who attend to the transfer resulting from such sale shall be the conveyancers nominated by the Developer.
22.2 Failure by the Purchaser to abide by the provisions of this clause will entitle the Developer to withhold the granting of its consent to the transfer of the Unit.
23. Acceptance on behalf of the Association
24. Irrevocable Offer
This agreement shall, when signed by the Purchaser and submitted to the Seller, constitute an offer to purchase the Unit from the Seller, which offer shall be irrevocable until ____H_____ on ______________________ day ____ of ________________________ and whereafter, if it has not been accepted by the Seller, the Purchaser may withdraw it on written notice to the Seller.
25. ANNEXURES
25.1 The Purchaser acknowledges that the following annexures form an integral part of this Agreement, and must be downloaded by the Purchaser from the St Johns Village website (www.stjohnsvillage.co.za): Architectural regulations and guidelines
Landscaping guidelines
St Johns Homeowners Association Memorandum of Incorporation St Johns Village Code of Conduct
Any queries regarding, or objections to, the content contained in the said annexures should be addressed in writing, to the agent or the Conveyancer, within five (5) days of signature hereof by the Purchaser. Should no objection be received within the stipulated period, the Purchaser shall be regarded as having downloaded and read the annexures, and accepted the contents thereof. The Purchaser acknowledges that the submission of an objection/query/complaint in this regard, does not nullify this contract or detract from its validity in any way whatsoever.
25.2 The following Annexures are attached to this agreement: Annexure SA : Site plan
DATED at ____________________________ this ______ day of _____________________________
AS WITNESS:
___________________________________
_______________________________________________
PURCHASER: I acknowledge that I am acquainted with and
understand the contents of this agreement and that all the annexures referred to in this agreement were attached hereto
when I signed same. _______________________________________________
CONSENTING SPOUSE
This portion to be signed by legal guardian / member / director/ trustee in the event of the Purchaser being a minor / close corporation / company / trust.
_____________________________________________________________________________________________________ (Full names) of _____________________________________________________________________________________________________ (Full address)
hereby consents to the conclusion of this agreement and guarantees and binds himself as surety for and co-principal debtor in solidum with the Purchaser to the Seller for the due and punctual fulfilment and discharge of all the conditions and obligations undertaken by the Purchaser to the Seller pursuant to this agreement, under renunciation of the benefits of excussion and division with the meaning and effect of which benefits and the renunciation thereof he acknowledges himself to be acquainted. No variation or amendment or novation of this agreement shall prejudice the surety obligation hereby undertaken by the undersigned Guarantor, the object being that he shall at all times remain liable as surety and co-principal debtor even if this agreement is varied or amended or novated and even if the aforesaid Purchaser is granted an indulgence by the Seller.
Signed by the guarantor at ____________________________________ on this __________ day of __________________________________
AS WITNESSES:
1. ________________________ 2. ________________________
DATED at ________________________________________ this ______ day of _____________________________________
AS WITNESS:
___________________________________
________________________________________
SELLER/DEVELOPER: PIERRE DE VILLIERS BERRANGE, DULY AUTHORISED HERETO
DATED at _______________________________________ this ______ day of ______________________________________
AS WITNESS:
___________________________________
_________________________________________________
ESTATE AGENT AGENT [Insert name] _____________________________
