Alienation of land agreements must be in writing

26 July 2021 ,  Salomé van Wyk 4247
The Alienation of Land Act, 68 of 1981 (the “Act”) provides that every alienation of land (agreements of sale, exchange and donation) shall be contained in a deed of alienation, and signed by the parties thereto or by their agents acting on their authority. What is required is that the whole contract of sale must be reduced to writing. What must be included in such a contract?

The identity of the parties, the amount of the purchase price and the identity of the subject matter of the contract (the property) must be set forth with sufficient accuracy and particularity to be ascertained without reference to the oral discussions between the parties. These three elements are called the essentialia and they are the essential terms of a deed of alienation. Without them the contract shall be rendered invalid.

The essentialia are in most instances not the only terms that are agreed to when parties agree to the alienation of land. Some of the other terms include the method of payment of the purchase price, the payment of the costs, the occupation date, the date of transfer and who to be appointed as conveyancer  These other terms are called material terms.

If any of the essentialia is not reflected in the written agreement, it will render the contract invalid, but if any of the material terms are completely absent it will not render a contract invalid per se. In such cases the position at common law will govern the position between the parties. As soon as the parties have agreed to deviate from the common law position then those material terms must be set out in writing. Failure to do so will render the contract invalid due to non-compliance with the Act.

It is important that what was agreed between the parties should be reduced to writing and signed by both parties. Our conveyancers, Madeleine Goldie and Salomé van Wyk can assist you in making sure that your deed of alienation complies with all requirements to make it a valid contract.