AGREEMENT OF SALE – "SOMERSET SERENO"
Page 7
STANDARD TERMS AND CONDITIONS
1.
PREAMBLE
1.1 The Seller intends to erect the Building/s materially in accordance with the building plans
prepared by the Architect, copies of extracts from which plans constitute Annexures "A"
and "B" hereto, and specifications, copies of which constitute Annexure "C" hereto, on the
Property described above.
1.2 The Seller intends to apply to the Local Authority for the approval of all matters in respect
of the proposed development which will be carried out subject to the approval being
granted.
1.3 The Seller intends applying in terms of the Act for the opening of the Sectional Title
Register in respect of the Buildings when they are erected and ready for occupation.
1.4 The Purchaser wishes to purchase the said Unit.
2.
INTERPRETATION
2.1 In this Agreement, unless inconsistent with the context –
MdeV
2.1.1
"the Act" means the Sectional Titles Act No 95 0f 1986 or any amendment
thereof and includes the regulations promulgated thereunder from time to time;
2.1.2
"the Agent" means the selling agent referred to in Clause 9 of the Schedule;
2.1.3
"the Agreement" or "this Agreement" means this document and all annexures,
written addenda and written variations hereto;
2.1.4
"area or "areas" mean area/s as determined in accordance with the Act;
2.1.5
"the Architect" means Jacobs, Wolters & Associates and/or such other architect
as the Seller may appoint for the Development;
2.1.6
"the Attorneys" means CHRISTO MARAIS ATTORNEYS DOORNBOSCH
STELLENBOSCH;
2.1.7
"the Body Corporate" means the Somerset Sereno Body Corporate to be
established in terms of Section 36 of the Act:
2.1.8
"boundary" or "boundaries" mean the median line as defined in the Act;
2.1.9
"the Building" means the building and other structures to be built on the Property;
2.1.10
"business day" means any day other than a Saturday, Sunday or Public Holiday;
2.1.11
"the Common Property" means the Property and such parts of the Building which
do not form part of a Section;
2.1.12
"Date of Signature" means the date of the last signing of this Agreement;
2.1.13
"Scheme" means the Property and the Building in respect of which the Seller
intends to register a Sectional Title Scheme known as SOMERSET PLACE
(PHASE II) (SOMERSET SERENO);
2.1.14
"the Drawings" mean the Architect's schedules, specifications and other drawings
as annexed hereto;
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 8
2.1.15
"the Dwelling Area" means that portion of the Unit defined in Clause 3 of the
Schedule, excluding any parking bay/s, storeroom and garden area;
2.1.16
"Exclusive Use Area" means, where applicable, the area of Common Property
allocated for the Purchaser's exclusive use and enjoyment as referred to in
Clause 3 of the Schedule and as indicated on the Unit Plan;
2.1.17
"the Occupation Date" means the date the Architect certifies in writing (which
Certificate shall be final and binding on the parties) that the Unit is ready for
beneficial occupation by the Purchaser (the anticipated Occupation Date being
the date specified in Clause 7 of the Schedule), or such earlier date as the
parties agree in writing, being the date upon which the Purchaser takes
possession and occupation of the Unit;
2.1.18
"the Plans" mean the Drawings as defined in Clause 2.1.14;
2.1.19
"the Property" means Erf 17999 Somerset West, upon which the Scheme will be
created;
2.1.20
"the Purchaser" means the Purchaser as set out in the Schedule;
2.1.21
"the Register" means the Sectional Title Register in respect of the Property and
the Building to be opened in terms of the Act;
2.1.22
"the Rules" mean the Management and Conduct Rules prescribed by the Act and
as amended by the Seller when opening the Register and by the Body Corporate
from time to time, as well as the House Rules which may be imposed pursuant to
Rule 76 of the Act;
2.1.23
"the Schedule" means pages numbered 1 to 6;
2.1.24
"the Sections" mean the Sections in the Scheme more fully described in the
Schedule and which have been numbered on the Floor Plans;
2.1.25
"the Sectional Plan" means the Sectional Plan of the Scheme to be approved by
the Surveyor General and registered by the Registrar of Deeds;
2.1.26
"the Seller" means the Seller as set out in the Schedule;
2.1.27
"Specifications" mean the details of the Unit and the Building as set out in the
Annexures;
2.1.28
"the Standard Terms and Conditions" mean pages 7 to 21 of this Agreement;
2.1.29
"the Surety" means the person described as such in Clause 11 of the Schedule;
2.1.30
"Purchase Price" means the amount in Clause 4 of the Schedule reflected as
"PURCHASE PRICE";
2.1.31
"transfer" means registration of transfer of the Unit in the name of the Purchase;
2.1.32
"the Unit" means :
(a)
(b)
(c)
the Sections;
the Exclusive Use Area (where applicable); and
an undivided share in the Common Property as well be apportioned to
the Sections in terms of the participation quota of the Sections in
accordance with the Act;
all as more fully described in the Schedule read with the Annexures and as will
be finally described in the Sectional Plan in the case of the Sections and the
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 9
Exclusive Use Area (where applicable), but excluding any Sections or Exclusive
Use Area in respect of which the relevant block/s in Clause 3 of the Schedule
has been left blank.
2.2 Words and expressions defined in the Act shall have the meanings therein defined.
2.3 Words importing the singular shall include the plural and vice versa and words importing
the masculine gender shall include females and the neuter gender and words importing
persons shall include partnerships and bodies corporate and vice versa.
2.4 The head notes to the paragraphs to this Agreement are inserted for reference purposes
only and shall not affect the interpretation of any of the provisions to which they relate.
2.5 If any provision in a definition and/or in the Schedule is a substantive provision conferring
rights or imposing obligations on any party, notwithstanding that it is only in the definition
clause, effect shall be given to it as if it were a substantive provision in the body of the
Agreement.
2.6 If any Clause (or part thereof) is at any time found to be invalid, such invalidity shall not in
any way affect the validity of the remainder of this Agreement.
3.
SALE
The Seller sells to the Purchaser who hereby purchases the Unit for the Purchase Price
reflected in Clause 4 of the Schedule and on the terms and conditions contained in this
Agreement.
4.
EXCLUSIVE USE AREAS
4.1 The Purchaser shall be entitled to the exclusive use and enjoyment of the Exclusive Use
Area (where applicable), subject to the provisions of the Act, the Rules and this
Agreement.
4.2 The rights to the Exclusive Use Area shall be allocated by way of a Notarial Cession in
terms of Section 27 of the Act.
4.3 The Seller shall be entitled to sell and allocate exclusive use rights to other areas of
Common Property to other purchasers in the Development Scheme.
5.
PURCHASE PRICE AND PAYMENT
5.1 The Purchase Price shall be paid as follows:
5.1.1
the deposit set out in Clause 4 of the Schedule ("the deposit"), payable in cash
within 5 (five) business days, to the Seller's Attorneys, Messrs Morkel & De
Villiers Inc of Somerset West, failing which the Purchaser's offer will be of no
force and effect and the Unit will be available for sale;
5.1.2
the deposit will be invested by the Attorneys on call, for the benefit of the
Purchaser and for release to the Seller on transfer subject, however, to Clauses
23, 25 and 26. The provisions of this Clause 5.1.2 shall constitute authority to
the Attorneys, in terms of Section 78(2A) of the Attorneys Act, to invest the
deposit and to deduct any administration charges incurred by them in this regard;
5.1.3
the balance of the Purchase Price set out in Clause 4 of the Schedule in cash
against registration of the transfer into the name of the Purchaser, to the said
Seller's Attorneys.
5.2 Subject to Clause 23, if applicable, the Purchaser shall, within 21 (twenty-one) business
days of the Date of Signature, furnish the Attorneys with an irrevocable and unconditional
bank guarantee from a Bank acceptable to the Seller and in a form acceptable to the
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 10
Seller, for the due payment of the balance of the Purchase Price and any other amounts
due in terms of this Agreement. The said guarantee shall provide for payment to be
effected at Somerset West branch of such bank immediately upon receipt by the Bank of
written notification from the Attorneys that transfer has been effected. Alternatively, the
Purchaser may pay such amounts to the Attorneys, which amounts will be dealt with on
the same terms as provided for in Clause 5.1.2 above.
5.3 In the event of the percentage of Value Added Tax at any time prior to transfer being
amended from the current rate of 14% (fourteen percent), then the Purchase Price as
reflected in Clause 4 of the Schedule shall be appropriately amended so that the total
purchase price shall include Value Added Tax at the rate applicable to this transaction.
5.4 All or any payments to be effected hereunder, shall be effected by the Purchaser to the
Seller or the Attorneys free of exchange at Somerset West and without deduction or setoff.
6.
ANTICIPATED OCCUPATION DATE
6.1 The Purchaser shall be entitled to occupation of the Unit on the Occupation Date, or such
earlier date as may be notified to the Purchaser by the Seller in writing at any time (in
which event Occupation Date shall mean such earlier date), but subject to the other
provisions of this Clause 6.
6.2 If the Unit is not ready for occupation by the Purchaser on or before the Occupation Date,
then the Seller may by giving written notice to that effect to the Purchaser extend such
date, in which event the term Occupation Date shall mean such extended date.
6.3 Any dispute as to whether or not the Unit is ready for occupation as aforesaid shall be
referred to the Architect who, acting as an expert and not an arbitrator, shall determine
such dispute, his decision in this regard being final and binding on the parties.
6.4 The Seller shall not incur any liability of whatsoever nature by reason of the Seller's failure
to give notice in terms of Clause 6.2 or by reason of the Unit not being ready for
occupation on the date referred to/or on the expiry of a notice given in terms of Clause 6.1
and 6.2.
6.5 The Purchaser acknowledges that :
MdeV
6.5.1
other portions of the Unit and/or Building may not necessary be complete at the
Occupation Date;
6.5.2
the peaceful use and enjoyment of and access to the Unit and the Common
Property may be temporarily interrupted and noise and dust caused, from time to
time during such building operations;
6.5.3
the occupation of the Unit by the Purchaser (and those occupying through or
under the Purchaser) between the Occupation Date and the date of transfer,
shall not in any way constitute a tenancy between the Seller and the Purchaser
(and those occupying the Unit through or under the Purchaser);
6.5.4
the anticipated Occupation Date reflected in Clause 7 of the Schedule is only an
estimate of the actual Occupation Date and no liability whatsoever will attach to
the Seller if the Occupation Date occurs before or after the date reflected in
Clause 7 of the Schedule;
6.5.5
the Seller shall be obliged to insure the Unit and the Building up to the date of
transfer whereafter the Purchaser shall be obliged to ensure that the Body
Corporate insures the Unit and the Building.
AGREEMENT OF SALE – "SOMERSET SERENO"
7.
Page 11
OCCUPATIONAL INTEREST
From the anticipated Occupation Date until registration of transfer of the Unit into the name of
the Purchaser, the Purchaser shall pay Occupational Interest to the Seller in the amount set
out in Clause 5 of the Schedule, which Occupational Interest shall be paid monthly in advance
from the Occupation Date to the Date of Transfer aforesaid and pro rated in respect of any
portion of a month. It is recorded that the Occupational Interest has been determined on the
basis of the parties understanding that VAT is not payable in respect thereof. Accordingly, if it
is found to the contrary, VAT shall be added to each payment thereof and paid to the Seller by
the Purchaser at the rate then applicable.
8.
TRANSFER
8.1 Transfer shall not be passed to the Purchaser, notwithstanding anything to the contrary
herein contained, until such time as the Purchase Price and all other amounts for which
the Purchaser may be liable in terms thereof to the date of transfer have been paid and/or
payment thereof has been secured as herein provided.
8.2 Transfer of the Unit, together with registration of a mortgage bond for the Purchaser which
is relevant thereto, if any, shall be effected by the Seller's Attorneys.
8.3 It is recorded that the Seller will be unable to effect transfer of the Unit into the name of
the Purchaser until the Sectional Title Register has been opened and all suspensive
conditions have been fulfilled and, further that it is the intention to effect transfer either
simultaneously with or as soon as possible thereafter.
8.4 The Purchaser shall sign all documents necessary to give effect hereto at the offices of
the Attorneys within 5 (five) business days of being called to do so.
8.5 The Purchaser hereby undertakes, immediately upon request therefore, to provide to the
Attorneys, all such information and/or documentation required in order to comply with the
Financial Intelligence Centers Act No 38 of 2001, which information shall include, but not
be limited to, proof of the Purchaser's Income Tax Registration Number and residential
address.
8.6 The Purchaser shall accept transfer to the Unit subject to all conditions and servitudes
benefiting or burdening the Property, whether existing or hereafter imposed by any
competent authority and/or imposed by the Seller, the Rules of the Body Corporate in
force from time to time as well as any additional Conditions of Title disclosed in the
Annexure hereto, which the Seller will impose when opening the Register.
8.7 The Purchaser shall not be entitled to resile from this Agreement nor to hold the Seller
liable for damages or otherwise in the event of delays in the registration of the Sectional
Plan.
9.
COST OF TRANSFER
9.1 All transfer costs relating to the registration of the Unit in the name of the Purchaser will be
borne by the Seller.
9.2 It is recorded that in view of the fact that this sale is inclusive of VAT no transfer duty is
payable.
9.3 The Purchaser shall be liable for payment of the bond registration costs, as well as the
Bank's valuation and administration costs, relating to the bond referred to in Clause 12 of
the Schedule. The registration of such bond shall be conducted by the said CHRISTO
MARAIS ATTORNEYS at the recommended conveyancing tariff as set down by the Cape
Law Society and related disbursements.
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
10.
Page 12
BUILDING NOT YET ERECTED
10.1 It is recorded that the Building/s is/are presently in the course of construction or have been
constructed or may not yet have been erected. As a consequence thereof the extent of the
Unit may vary, provided such variation shall not exceed 5 (five) percent of the extent
referred to above.
10.2 The Seller shall be entitled to vary the Plans and/or specifications for the Buildings to such
extent as may, in the Seller's opinion, be reasonably necessary to:
10.2.1
meet any requirement by the relevant authority;
10.2.2
meet any special features of the Property;
10.2.3
meet any special impediments such as water, sewer or electrical lines either
above or under ground or any rock or soil condition;
10.2.4
give effect to any changes in material, finishes or fittings (including without
limitation the colours and aesthetics of the Buildings) which the Seller considers
to be appropriate or which may not be readily available at the time due to
shortage in the supply of such materials, finishes or fittings, without, however,
detracting from the quality of the Buildings and/or the Unit; or
10.2.5
to obtain the approval of the Sectional Title Development Scheme and/or the
opening of the Sectional Title Register.
10.3 The Seller shall similarly be entitled to vary the numbers allocated to the Unit on the Plan,
as well as the name of the Development and the situation of the individual parking bays
within the general area designated for such parking bays on the Plan. In the event of a
dispute arising in connection with any of the matters referred to in Clause 10.2 and 10.3,
then the matter shall be referred to the Architect for determination, mutatis mutandis on
the basis referred to in Clause 6.3. A certificate by the Architect that any changes so
made do not result in a material change shall be conclusive proof thereof and shall be final
and binding on the parties.
10.4 The Purchaser acknowledges that on the Occupation Date, the common property forming
part of the Buildings and the Property, as well as other portions of the Buildings may be
incomplete and that occupants of the Unit may suffer inconvenience from building
operations and the Purchaser further acknowledges that it shall have no claim whatsoever
against the Seller by reason of any such inconvenience.
10.5 It is specifically recorded that the finishes to the Unit are not necessarily the same as
those stipulated in the finishes schedule, but will be of the same standard and quality.
The Seller will entertain no extras or changes to the finishes once the Purchaser has
chosen the finishes.
10.6 If the completion of the Unit is delayed as a result or vis major of any other cause beyond
the control of the Seller, then the Seller shall be entitled to a fair and reasonable extension
of the time for such completion and the Purchaser shall not for that reason have any claim
against the Seller, whether for damages or otherwise.
10.7 The Purchaser shall in no manner whatsoever be entitled to interfere, including but not
limited to the giving of directions or instructions, with the contractors and/or subcontractors employed by the Seller.
10.8 The Purchaser acknowledges that:
10.8.1
MdeV
the Specifications and Theme Finish of the Unit will not necessarily be the same
as those illustrated in any showroom utilized for display purposes or contained in
any other material exhibited by or on behalf of the Seller;
AGREEMENT OF SALE – "SOMERSET SERENO"
11.
Page 13
10.8.2
the images reflected in the Annexures hereto are for illustrative purposes only
and will not be binding on the Seller;
10.8.3
any model of the Building or the Unit made by or on behalf of the Seller and any
advertisement or other advertising material used for purposes of marketing the
Scheme and/or the Unit shall not constitute a representation by the Seller and
the Purchaser shall not be entitled to rely on any information therein;
10.8.4
all measurements and dimensions reflected in this Agreement and in the
Annexures to this Agreement are approximate and are subject to finalization on
approval by the relevant authorities.
LEVIES
Upon establishment of a Body Corporate as envisaged in the Act, the following provisions shall
apply:
11.1 The Purchaser shall make payment to the Body Corporate from time to time of an amount
(plus VAT if applicable) calculated by the Body Corporate as the Purchaser's contribution
to all the expenses incurred in the administration of the Building and the Property, being
the levy in terms of Section 37(1) of the Act.
11.2 The Purchaser acknowledges that the amounts set out in Clause 6 of the Schedule
excludes rates and taxes and other charges (collectively referred to as "rates") payable to
the City of Cape Town and that the Purchaser shall be liable to pay same directly to the
City of Cape Town. In the event that the City of Cape Town has no separately rated the
Unit for rates purposes, the levies shall be increased by the amount of rates attributable to
the Unit in accordance with the Unit's participation quota.
11.3 Pending the determination of the actual amount of such levy, the Purchaser shall (subject
to 11.4.1 hereafter) from the Occupation Date pay on account of such monthly levy an
amount as shall be certified by the Seller as being its bona fide estimate of such monthly
levy. Upon determination of the actual monthly levy so payable any amount unpaid or
overpaid shall forthwith be paid or reimbursed by one party to the other.
11.4 Notwithstanding anything herein contained to the contrary:
12.
11.4.1
The Seller hereby irrevocably undertakes as a condition of the sale, to pay an
amount of R2 100,00 (Two Thousand One Hundred Rand) to the Body Corporate
against registration of transfer in the name of the Purchaser as a credit to the
Purchaser's account with such Body Corporate, the said amount to be an
allowance granted by the Seller to the Purchaser in respect of the Purchaser's
initial responsibility for such levies.
11.4.2
In view of these contributions it is hereby agreed that the Seller shall not be
required to make any levy contribution in respect of unsold units in the Scheme
for a period of 1 (one) year as from date of registration of transfer of the first unit
in the Scheme into the name of a Purchaser.
SPECIAL PROVISIONS PRIOR TO ESTABLISHMENT OF THE BODY CORPORATE
AND/OR TRANSFER
Pending the establishment of a Body Corporate as envisaged in the Act and transfer of the
Unit, the following shall apply:
12.1 THE PURCHASER
Upon the Purchaser taking occupation of the Unit and pending transfer, the following
conditions shall apply –
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 14
12.1.1
save insofar as may be inconsistent with the provisions of this Agreement, the
provisions of Section 44(1) of the Act, a copy of which is attached as Annexure
"A" , shall apply as if the Purchaser were the owner of the Unit;
12.1.2
the other provisions of the Act and the provisions of the Rules insofar as they
cast any duty upon the owner or occupier of a Unit, shall bind the Purchaser and
be enforceable by the Seller as if the Purchaser was the owner of the Unit;
12.1.3
the Purchaser shall not be entitled to make any alterations or additions to the
Unit;
12.1.4
the Purchaser shall be obliged to maintain the Unit in a fit and proper condition
and properly painted and shall also maintain the geyser included in the Unit;
12.1.5
the Purchaser shall not be entitled to divide the Section for the purposes of
selling, donating or in any other manner alienating or disposing of the
Purchaser's rights of occupancy;
12.1.6
the Purchaser shall not in any manner alienate his rights to the Unit, unless he
has furnished guarantees by himself or a third party to the Seller for the full
Purchase Price and obtained the written consent of the Seller to such alienation;
12.1.7
the Purchaser shall not use the Unit in such manner as to cause any damage to
the other Units in the Buildings and/or on the Property;
12.1.8
the Purchaser shall be entitled to use the Unit only as a dwelling;
12.1.9
the Purchaser may use and enjoy the common property but shall do so in such a
manner so as not to interfere with the use and enjoyment thereof by other Unit
holders or other persons lawfully upon the Property.
12.1.10 The Purchaser hereby waives all claims against the Seller for any loss or
damage to property or any injury to or death of any person which the Purchaser
may sustain in or about the Property, the Unit, the Building and indemnifies the
Seller against any such claim (including but not limited to any claim of costs,
including but not limited to Attorney and own client costs as determined in
accordance with the non-litigious tariff of the Law Society of the Cape of Good
Hope, or its successor) that may be made against the Seller by any member of
the Purchaser's family or the Purchaser's invitees, employees or agents for any
loss or damage to property or injury to or death of a person suffered in or about
the Property, the Unit, the Building howsoever such loss or damage to property
or injury to or death of the person may be caused.
12.1.11 The Purchaser acknowledges that after the establishment of the Body Corporate
in terms of Section 28 of the Sectional Title Act, a general meeting of the Body
Corporate will be convened in terms of the said Act, at which the Rules as
contained in Annexures 8 and 9 of the Regulation to the said act will be
amended/substituted to incorporate the relevant items of this Agreement as well
as Rules imposed by the Developer relating to the allocation of parking bays. To
this end the Purchaser hereby gives and grants to the Seller an irrevocable
Power of Attorney in rem suam (operative from time to time the Purchaser
becomes the registered owner of the Unit) to attend such general meeting on
behalf of and to the exclusion of the Purchaser to vote at such meeting of the
Body Corporate for the adoption of such amended/substituted Rules).
12.1.12 The amended Rules may be varied by the Seller prior to the adoption in terms
hereof so as to comply with the requirements of an existing or prospective
bondholder, or if the Seller reasonably believes that the amendment is necessary
for the proper management and administration of the Scheme.
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 15
12.2 THE SELLER –
12.2.1
either personally or through servants, employees or agents, shall be entitled at all
reasonable times to have access to the Section for the purpose of inspecting it
and/or to carry out any maintenance or repairs which the Seller may in terms
hereof be obliged or entitled to perform, whether such repairs relate to the Unit or
not, and the Purchaser shall have no claim against the Seller for any disturbance
in its occupation arising out of the exercise by the Seller of the rights hereby
conferred;
12.2.2
shall keep the Buildings insured to their replacement value against all risks which
the Seller may deem prudent to insure, and to pay the premium falling due
thereon from time to time;
12.2.3
shall maintain the Common Property and keep it in a state of good and
serviceable repair, including any structural repairs to the improvements erected
thereon;
12.2.4
shall keep in a state of good and serviceable repair and maintain the plant,
machinery, fixtures and fittings used in connection with the Common Property;
12.2.5
shall repair and maintain all pipes, wires, cables and ducts existing on the
Property or in the Buildings and capable of being used only in connection with
the enjoyment of more than one Unit or of the Common Property, provided,
however, that notwithstanding anything to the contrary herein contained, the
Seller shall be entitled to effect any repairs to the Building (including the Unit)
and/or the Property even though the Seller is not obliged to effect such repairs in
terms of this Agreement;
12.2.6
shall be entitled to exercise all the rights and enjoy the capacity which it would
have if it were a Body Corporate which has come into existence in terms of the
Act in respect of the Property and the Buildings.
12.3 Notwithstanding anything to the contrary contained in this Agreement, the risk of the Unit
shall remain with the Seller and shall pass to the Purchaser upon registration of transfer of
the Unit into the name of the Purchaser.
12.4 Until the Body Corporate has, at its inaugural meeting, appointed Trustees and a
Managing Agent, the Seller may delegate any or all of its powers and duties to a
Managing Agent, who may exercise such powers as the Seller may determine. The Seller
is further entitled to appoint a Managing Agent, such appointment to be binding on the
Body Corporate for a period of one (1) year reckoned from its inaugural meeting. The
Purchaser irrevocably grants the Seller the power so to do.
13.
VOETSTOOTS
13.1 Subject to Clause 13.3, and in the event of there being any defects in the Unit not covered
by the NHBRC Standard Home Builders Warranty and in the event of the Purchaser
notifying the Seller thereof in writing within 30 (thirty) days of the Occupation Date, then
the Seller shall cause reasonable repairs to the said defects to the effected as soon as
reasonably possible after receipt of the defects list. The Seller and all persons authorized
or employed by the Seller shall be entitled to access to the Unit for purposes of inspection
and effecting the said repairs. After such repairs have been effected, no liability shall
attach to the Seller in respect of any defects. In the event of the Purchaser failing
timeously to notify the Seller of any defects as herein before provided, the Purchaser,
shall have no further claim against the Seller in this regard.
13.2 Subject to Clause 13.3, should any leaks in the roof of the Section (if it has a roof)
manifest themselves within 12 (twelve) months of the Occupation Date ("the twelve month
period"), the Purchaser shall furnish the Seller at its domicillium as provided for in Clause
22 below, with a written and signed list of such leaks ("the roof leaks list") within 5 (five)
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 16
business days of the expiry of the twelve month period, failing with the Purchaser shall be
deemed to have accepted the Unit in good order and condition. The Seller shall cause all
or any reasonable repairs to the said leaks in the roof to be effected as soon as
reasonably possible after receipt of the roof leaks list; thereafter no liability shall attach to
the Seller in respect of such leaks.
13.3 The Seller's obligations in terms of Clauses 13.1 and 13.2 shall –
13.3.1
only apply in respect of defects or leaks arising as a result of faulty workmanship
and/or materials used in the construction of the Unit and for no other defects or
leaks, howsoever arising;
13.3.2
only apply, subject to Clause 13.1 and 13.2, for so long as the Purchaser is the
registered owner of the Unit;
13.3.3
no apply in respect of or arising in any way from any alterations to the Unit
effected at the instance of the Purchaser;
13.3.4
not entitle the Purchaser to claim any consequential damages from the Seller.
13.4 Subject to the provisions of Clauses 13.1 and 13.2, the Purchaser acknowledges that the
Unit is purchased and sold voetstoots. The Unit is purchased subject to all conditions and
servitudes, whether imposed by the local authority when approving of the Development,
contained in the title deeds, the Annexures relating to the Scheme the Sectional Plans and
the Rules of the Development Scheme, and the Purchaser acknowledges having made
himself fully acquainted with the Unit, its nature, situation and extent, the Plan, the
Specifications, the said Rules of the Development Scheme and all other relevant
documents.
13.5 Without prejudice to the provisions of Clauses 13.1 and 13.2, the Seller shall not be liable
under any circumstances or at any time prior to, during or after construction of the Unit for
any indirect or consequential damages of any nature which the Purchaser may suffer at
any time and for whatever reason.
13.6 The Seller acknowledges that a Standard Home Builders Warranty in accordance with
legislation and the rules and practice of the National Home Builders Registration Council
(NHBRC) shall apply to the improvements of the Property.
13.7 After the establishment of the Body Corporate and after the Architect has issued the Final
Certificate of Completion referred to and in terms of the Agreement the Seller will sign with
the Principal Building Contractor for the erection of the Building, the Seller will cede to the
Body Corporate all rights the Seller may have at that time against the Principal Building
Contractor in respect of the Building, provided the Seller gives no warranties as to the
cedibility of such rights, the effectiveness of enforcing such rights nor anything relating
thereto.
13.8 The Purchaser acknowledges that, the Seller shall not be bound by any representations,
warranties, promises, undertakings and the like made by or on behalf of the Seller which
are not contained in this Agreement.
14.
BREACH
14.1 In the event of any payments in respect of the Purchase Price, Occupational Interest or
other charges or payments for which the Purchaser is liable hereunder, or any obligation
imposed on the Purchaser hereunder, remaining unpaid or unfulfilled for a period of 7
(seven) days after notice in writing has been given by or on behalf of the Seller shall, at its
election and without prejudice to any other rights which it may have in terms hereof or at
law, have the right, either to enforce this Agreement or alternatively to declare the sale
cancelled. In the event of the Seller canceling the sale as aforesaid, any amount or
amounts paid to the Seller or the Attorneys (including any amount paid in trust) shall be
forfeited to and retained by the Seller as Rouwkoop, alternatively if the Seller so elects, it
may recover any damages incurred as a result of such cancellation including any losses
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 17
and expenses on a resale, whether by public auction or private treaty), in which case the
amount or amounts paid to the Seller or the Attorneys as aforesaid (including any amount
paid in trust) will not be forfeited as Rouwkoop, but may be retained by the Seller by way
of set off or partial set off against the damages claimed by the Seller.
14.2 Should the Purchaser dispute the Seller's right to cancel this Agreement, then pending the
determination of that dispute, the Purchaser shall be obliged to continue payment of all
amounts payable by him in terms of this Agreement on the due dates thereof and the
Seller shall be entitled to recover and accept those payments without prejudice to the
Seller's claim for cancellation of this Agreement or any other rights of the Seller
whatsoever.
14.3 Upon cancellation of this Agreement for any reason whatsoever, the Purchaser hereby
undertakes to vacate forthwith the Unit and to procure that the Unit shall be vacated by
any persons who occupy it through the Purchaser's title or by its permission. Occupation
shall be redelivered in the same good order and condition as at the Occupation Date.
15.
JURISDICTION
15.1 For the purpose of all or any legal proceedings herein the parties hereby consent to the
jurisdiction of the Magistrate's Court under Section 18 of the Magistrates Court Act of
1944, as amended. Notwithstanding the aforegoing, the Seller shall have the right at the
Seller's sole option and discretion to institute proceedings in any other competent Court
which might otherwise have jurisdiction.
15.2 The Purchaser agrees that, in the event of the Seller instructing its Attorneys and/or taking
legal proceedings against the Purchaser pursuant to a failure by the Purchaser to fulfill
any of his obligations in terms hereof, then the Purchaser shall pay legal costs plus VAT
incurred by the Seller in connection therewith as between attorney and own client,
including collection commissions laid down at the tariff rate applicable, such costs being
calculated on the non-litigious tariff of the Law Society.
16.
JOINT AND SEVERAL LIABILITY
Should this Agreement be signed by more than 1 (one person) as Purchaser, the obligations of
all the said signatories shall be joint and several.
17.
TRUSTEE OR NOMINEE
If this Agreement is entered into by the signatory for the Purchaser with a proviso to nominate
a third party or entity as purchaser then:
17.1 the said signatory, by his signature hereto, binds himself in favour of the Seller as surety
and co-principal debtor, under renunciation of the benefits of division, execution and
cession of action, for the due performance of all the obligations of the said company, close
corporation or nominated Purchaser or in terms of or arising out of this Agreement or any
cancellation thereof; and
17.2 Such nomination must be effected by midnight on the date of last signature of this
Agreement with the proviso that any legal entity so nominated must have been registered
or created prior to such nomination.
18.
COMPANY / CLOSE CORPORATION
18.1 If this Agreement is signed by a person acting or purporting to act for and on behalf of a
Company or Close Corporation (other than one not yet incorporated or formed), or Trust,
he warrants by his signature that he is duly authorised so to sign this Agreement, and by
his signature binds himself in favour of the Seller as surety and co-principal debtor in
solidum, under renunciation of the benefits of division, excussion and cession of action, for
the due performance of all the obligations of the said Company, Close Corporation or
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 18
Trust in terms of or arising out of this Agreement, or any cancellation pursuant to this
Agreement.
18.2 If the person signing as Purchaser acts or purports to act as agent or trustee for a
Company or Close Corporation not yet incorporated or formed, such person undertakes in
his personal capacity that the Company or Close Corporation for which he is acting as
agent or trustee will be formed within 30 (thirty) days of signature and will, within 7 (seven)
days of being incorporated or formed, adopt or ratify this Agreement, without modification.
18.3 If the said Company or Close Corporation is not incorporated or formed within the period
prescribed in Clause 18.2 above, then such person by his signature binds himself in
favour of the Seller as surety and co-principal debtor in solidum, under renunciation of the
benefits of division, excussion and cession of action, for the due performance of all the
obligations of the said Company or Close Corporation in terms of or arising out of this
Agreement, or any cancellation pursuant to this Agreement.
19.
BROKERAGE
19.1 The Purchaser warrants that the Agent is the sole and effective cause of this Agreement.
The Purchaser further warrants that the Unit and/or the Scheme and/or the Seller were not
introduced to the Purchaser by any person or entity other than the Agent and hereby
indemnifies the Seller and holds it harmless against any other agent's commission that
may be made by any other agent arising out of this transaction.
19.2 The Seller shall pay commission to the Agent and irrevocably instructs the Attorneys to
pay over the Agent's commission directly to the Agent on transfer.
19.3 If the Purchaser fails to carry out his obligations in terms of this Agreement, the Agent
shall have the right to recover the said commission from the Purchaser.
20.
NON-WAIVER
No concession or any other indulgence which may be granted by the Seller to the Purchaser,
whether in respect of time for payment or otherwise in regard to the terms and conditions of
this Agreement, shall be deemed to be a waiver or estoppel of or affect, prejudice or derogate
from the rights of the Seller under this Agreement.
21.
NOVATION
21.1 No warranty or representation express or implied or variation of this Agreement shall
affect the terms thereof unless such warranty or representation or variation shall be
reduced to writing under the hands of the parties hereto.
21.2 The terms of this Agreement shall novate, cancel and supersede the terms and conditions
of all prior negotiations, documents, letters or verbal communications between the parties
hereto with the intent and purpose that the terms and conditions hereof shall be deemed
to constitute the sole record of the Agreement subsisting between the parties.
22.
DOMICILIUM
The parties do respectively nominate and appoint the addresses set forth in the Schedule of
this Agreement, or such other addresses as they may at any time advise to the other of them
in writing, as their respective domicilia citandi et executandi for all purposes arising from or
incidental to this Agreement. Any notice given by the one party to the other and dispatched by
registered post, shall be deemed to have been received by the addressee, on the 4 th (fourth)
day after the date of posting thereof.
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
23.
Page 19
PURCHASER'S BOND
This sale is subject to the Purchaser being granted a loan against the security of the Property
by way of a First Mortgage Bond, by a South African Bank or recognized Financial Institution
for an amount of not less than the amount specified in Clause 12 of the Schedule upon the
normal terms, conditions and requirements of South African Banks or Financial Institutions
relating to the particular type or class of property. Should such bond not have been granted by
the date specified in Clause 12.3 of the Schedule or within such extended period as the Seller
may in his absolute discretion allow, then and in that event the sale shall be null and void and
neither party shall have any claim one against the other for any damages whatsoever.
24.
NO WITHOLDING PAYMENTS
The Purchaser shall not be entitled to withhold, delay or abate or set off payment of any
amounts due to the Seller in terms of this Agreement for any reason whatsoever.
25.
SUSPENSIVE CONDITION
25.1 Notwithstanding anything to the contrary herein contained the Purchaser confirms that this
Agreement is subject to the Seller obtaining planning approval from the local authority and
any other authority having jurisdiction in such regard.
25.2 The Seller records, and the Purchaser acknowledges, that the Property which his the
subject of this Agreement is not yet registerable in terms of the Alienation of Land Act No.
68/1981. The Property can therefore not be transferred in view of the fact that the Seller
has yet to obtain approval from the City of Cape Town – Helderberg Administration (as the
local authority) for the approval of the Sectional Title Scheme, as set out in the Annexure
hereto, to be carried out on Erf 17999 Somerset West. This Agreement is therefore
subject to the Seller obtaining approval from the said local authority for the approval of the
said Sectional Title Scheme. In the event of the said required approval not having been
obtained by 28 February 2007, the Seller shall have the right in his sole discretion to
extend the date by which such approval might be obtained to such further date that the
Seller in its sole discretion may determine, which further date shall be binding on both
parties to this Agreement; in the event of the Seller failing to extend the date by which
rezoning and subdivision shall be obtained, this Agreement shall be null and void and the
deposit paid by the Purchaser, together with accrued interest thereon, shall be refunded to
the Purchaser.
25.3 The Seller, or its successors in title shall, in its absolute discretion be entitled to apply for,
and subject to the necessary approval being granted by the local authority, vary the layout
and/or size and/or the extent and position of streets comprising the Development and the
Purchaser shall be bound thereby and shall have no claim of whatsoever nature against
the Seller or its successors in title arising therefrom.
26.
IMPLEMENTATION
The Purchaser acknowledges that the economic viability of the Scheme depends largely on
the response by the purchasing public to the launch of the Scheme, the Seller being granted
the required funding (on terms and conditions acceptable to the Seller) for the development of
the Property and the construction of the Buildings, and to the approval by all relevant
authorities, on terms and conditions acceptable to the Seller, of the development of the
Property as proposed by the Seller. It is specifically agreed that this Agreement is subject to
the resolutive condition that the Seller resolves not to implement the Development Scheme. If
the Seller or its agent fails to notify the Purchaser in writing by midnight on the 28 February
2007 of its decision not to implement the Development Scheme, the Seller shall be deemed to
have committed itself to the Development Scheme and this Agreement shall be binding in all
respects. If the Seller elects not to proceed with the Development Scheme, then and upon
refund to the Purchaser of the deposit (if paid in cash) and the balance of the Purchase Price
(if paid in cash in terms of Clause 5) together with accrued interest thereon, the parties
MdeV
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 20
reciprocally acknowledge that the shall have no further claim against each other.
Notwithstanding the aforegoing in this Clause 26 the Seller shall, however, at any stage prior
to the implementation date be entitled to inform the Purchaser that the Seller has committed
itself the to the Scheme.
27.
PROPOSED PHASED DEVELOPMENT
27.1 The Purchaser acknowledges and agrees to the development of the Property (or any
remainder thereof) in phases in terms of Section 25 of the Sectional Title Act or any
amendment or replacement thereof.
27.2 The Seller shall not be bound to proceed with the uncompleted phases of the
Development at once, but may do so in stages over a period of not exceeding 5 (five)
years in duration.
27.3 The Purchaser hereby consents :
MdeV
27.3.1
where applicable, to the Seller preparing and submitting in terms of Section 25 a
scheme or schemes to the local authority of the said Section for approval and
upon such approval, taking all necessary steps to erect additional Buildings on
the Property and thereafter applying for the registration of a Sectional Plan or
Plans;
27.3.2
to the imposition by the Seller, as conditions of title, all or any of the terms of this
Clause 27.
27.4
The Purchaser agrees to allow the Seller to exercise its positive and real right to
proceed with the Development in the manner envisaged herein and shall not be entitled
to interfere with or obstruct the Seller from erecting on the Common Property or any
portion thereof, the additional Buildings contemplated above, nor shall the Purchaser
have the right of use of or access to, to which he would otherwise be entitled, any
portion or portions of the Common Property upon which additional buildings are being
erected until such time as the aforesaid additional Buildings have been completed and
the Sectional Plan or Plans thereof registered; provided that the Seller shall pay all
rates and taxes and imposts calculated pro rata to the area of the Property involved,
due in respect of such portion of the Property whilst this condition remains applicable.
27.5
The Purchaser shall have no right to, or in, any such Buildings, of which Units the Seller
shall be the sole owner and Certificates of Registered Sectional Title shall be issued to
and in the name of the Seller who will be entitled to dispose of or otherwise deal with
such Units for its own exclusive benefit and account.
27.6
The Purchaser consents to his participation quota being reviewed and adjusted as
provided for in the Act upon registration of the Sectional Plan or Plans of the aforesaid
additional Building or Buildings.
27.7
Neither the Purchaser nor any successor in title to the Purchaser or any other person to
whom the Purchaser or his successors in title to the Unit has granted any real right,
shall be entitled to withhold his consent to the opening of the Sectional Title Register or
Registers, the phased development, as contemplated in this Agreement.
27.8
The Purchaser undertakes to sign upon request by the Seller all such documents as
may be necessary to enable the Seller to proceed with the aforesaid phased
developments.
27.9
Should the Purchaser fail to or refuse to sign any such documents, then the Purchaser
hereby appoints the Seller as his attorney and agent in rem suam to sign the same on
his behalf.
AGREEMENT OF SALE – "SOMERSET SERENO"
Page 21
27.10 The Proceeds of the sale of all the Units comprising the additional Buildings shall be for
the Seller's sole account and shall not be for the account of the Body Corporate.
28.
OFFER
The offer to the Seller constituted by the Purchaser having signed this Agreement shall be
deemed to be an offer by the Purchaser and shall be irrevocable and may not be withdrawn,
except by written notice to the Seller, which in any event may not be given prior to the expiry of
a period of 20 (twenty) business days from the date of signature by the Purchaser.
«--»
MdeV