Navigating the Alienation Nation

What is the Alienation of Land Act, 68 of 1981

This Act regulates the sale, exchange, and donation of immovable property in South Africa. When buying or selling immovable property, various legal processes must be followed before ownership can be transferred from one person to another. The mere payment of money does not automatically make the purchaser the new owner of the immovable property.

Unfortunately, many people do not understand that a legal process must be followed to obtain ownership of immovable property. In many cases, a purchaser assumes that once money has been paid to the seller, they own the immovable property. The purchaser, or their family, may then only discover at a later stage that the property was never officially transferred into the purchaser’s name.

Important Requirements to Ensure your Deed of Alienation is Valid

Without discussing all the different clauses that may be inserted into a Deed of Alienation, depending on the type of sale involved, there are a few very important essential elements that must be included for the Deed of Alienation to be valid, namely:

• it must be in writing;

• it must specify the following with sufficient clarity so that they can be determined without relying on oral discussions:

  • the identity of the parties;

  • a description of the subject matter, including the full property description; and

  • the purchase price or consideration.

• the Deed of Alienation must be signed by the parties themselves, or by their appointed agents acting in terms of a formal written authority;

• it must be signed in wet ink, an electronic signature is not sufficient; and

• if applicable, the cooling-off clause must be included. This clause applies where the purchase price of the residential immovable property is R250 000 or less. Its purpose is to give the purchaser 5 (five) days within which to unconditionally revoke the offer by delivering written notice. If this clause applies, this statutory right must be expressly stated in the Deed of Alienation.

Does my spouse really have to sign? Yes, no, maybe, I don't know

When conveyancing attorneys attend to the transfer of immovable property, one of the first things they do is review the Deed of Alienation. In addition to ensuring that there is a valid contract to work from, they must also confirm that all relevant parties have signed the document. Being married does not only change your honorific, it may also affect your rights to some extent, depending on the marital regime under which you are married.

Don't Assume: The Mother of All Contractual Catastrophes

The Deed of Alienation is the foundation of the transfer process. If the foundation is weak, the process may not run as smoothly as intended. When drafting a Deed of Alienation, you must ensure that everything agreed to by the parties is recorded in writing and signed for in the Deed of Alienation. Do not simply tell the agent what you want and then sign an agreement that does not include all the specific terms or requests you mentioned. Since the signed Deed of Alienation constitutes the whole agreement between the parties, only the terms recorded in that document will apply. Rather be safe than sorry, insist that everything be included in the Deed of Alienation and confirm whether all parties agree to it. This will help prevent unnecessary misunderstandings and disputes during and after the sale. It is very important that every party to the Deed of Alienation understands what they are signing. If you do not understand something, ask questions until you do.

Common Ways in which Ownership of Immovable Property may be Acquired

There are various contracts available to transfer immovable property, which includes but are not limited to:

1. Deed of Sale (the most common contract – Sale Agreement);

2. Instalment Sale Agreement (when purchasing an immovable property by paying the purchase price in more than 2 instalments over a period of more than 12 months);

3. Donation Agreement (when the Donor donates the immovable property to the Donee); 

4. Exchange / Barter;

5. By inheritance (by way of a Last Will and Testament);

6. By way of a divorce order (the Decree of Divorce issued by a Court);

7. By marriage (In community of Property); and

8. By prescription (Acquisitive Prescription).

I will be discussing the various contracts in my next few publications.

Sharon Honiball

LLB

Partner at Le Roux Vivier Attorneys

Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.