AVIANTO RESIDENTIAL ESTATE SALES AGREEMENT · 2016. 6. 21. · Dykes van Heerden Inc are instructed...

AVIANTO RESIDENTIAL ESTATE

SALES AGREEMENT

Le Jardin at Avianto Estate Sales Agreement June 2013 2

AVIANTO RESIDENTIAL ESTATE

Agreement of Sale The Developer as set out in paragraph 1 of Schedule "A" hereto hereby sells to the Purchaser as set out in paragraph 3 of Schedule A hereto, who hereby purchases the Property (as set out in clause 4.1 of Schedule A hereto) for the Purchase Price as set out in clause 5 of Schedule A hereto. For the purposes of this agreement the following words have the following meanings:- The Constitution - as the context may determine, the Constitution and Memorandum of

Incorporation or Memorandum and Articles of Association of the Homeowners Association

The Developer - the party described in clause 1 of Schedule A hereto; The Development - the development which is known as the Avianto Residential Estate; Private Open Spaces - Those portions of the Development which belong to the Homeowners Association referred to in clause 25 below. Project Period - the period from date of signature of this agreement by both parties until

the date that the Developer notifies the Purchaser that it has ceased the development of the land of which this Property forms a part.

The Property - the property described in clause 4.1 of Schedule A hereto; The Purchaser - the party described in clause 3 of Schedule A hereto; The Purchase Price - the amount set out in clause 5 of Schedule A hereto. 1 THE PROPERTY

1.1 The Purchaser acknowledges that he is aware of the fact that the Property hereby sold

forms part of a Residential Estate to be developed in phases as determined by the Developer and which Estate shall be governed by a Home Owners Association, subject to the Constitution of the said Association, an Environmental Management Plan, Architectural and Aesthetical Guidelines and all conditions of establishment imposed by Competent Authority and the Developer for the mutual benefit of all property owners in the Development.

The Property (stand) is described in Schedule A attached and depicted and marked for

identification on the Layout Plan of the proposed development, attached hereto marked "Avianto Residential Estate Lay-out Plan" – Schedule B. The description of the Property may be varied on approval by the Surveyor General of the General Plan of the Township.

1.2 The Developer shall be entitled to vary the development plan provided that such

variation shall substantially conform to such Layout Plan as to position, size, gradient and elevation of the Property.

1.3 Any and all disputes regarding whether the Property conforms to the Layout Plan on

approval of the General Plan, shall be referred to the Town Planners of the development appointed by the Developer who shall act as referee herein. The Town Planners’ decision shall be final and binding on the Developer and the Purchaser.


1.4 The Developer shall not be liable for any deficit in size nor shall it benefit in respect of any surplus revealed on the approved general plan.

1.5 The Developer shall not be liable to point out the survey pegs of the Property to the

PURCHASER nor shall it be liable for the costs to locate such pegs. 2 THE PURCHASE PRICE

2.1 Except if otherwise agreed upon in writing by the Developer the Purchase price as set

out in Schedule A shall be payable by the Purchaser to the Developer within 30 (thirty) days from the signature date of this agreement by the Purchaser, a deposit as set out in Schedule A shall be paid to the Conveyancing Attorneys to be held in an interest bearing account on behalf of the Purchaser.

2.2 The balance Purchase Price as set out in Schedule "A" shall be paid to the Developer

against registration of transfer of the Property into the name of the Purchaser which amount shall be secured by a bank guarantee subject to no terms and conditions other than the transfer of the Property into the name of the Purchaser, the release of the Property from any mortgage bonds which are registered over the Property and the successful registration of a mortgage bond in favour of the financial institution loaning the monies to the Purchaser (if applicable) and in the format usually used by such institution which guarantee shall be delivered within 30 days after acceptance of this offer or fulfilment of the suspensive conditions referred to in clause 11 (whichever is the later) and payable free of exchange at Roodepoort against registration of transfer of the Property into the name of the Purchaser.

2.3 All amounts payable to the Developer in respect of the Purchase price shall be paid to the Conveyancers and be held by them in trust and the Purchaser hereby authorizes the Conveyancers to invest such deposit, in an interest bearing account at any bank for the benefit of the Purchaser in accordance with the provisions of Section 78(2A) of the Attorneys Act No. 53/1979 until registration of transfer of the property in the name of the Purchaser where after the Conveyancers will pay the aforesaid deposit as part of the purchase price to the Developer or nominee/s.

2.4 The Developers appointed attorneys and conveyancers are: Dykes van Heerden Inc, 19 Ontdekkers Road, Roodepoort, Tel: (011) 279 5000, Fax: (011) 955 4799, Email: [email protected].

2.5 In the event of the Purchaser purchasing 3 (three) or more properties (stands) in Avianto Residential Estate, the Purchaser irrevocably undertakes to make available all relevant information to the Developer to perform a complete and full due diligence on him/her/it.

3 INTEREST ON OVERDUE PAYMENTS

3.1 All amounts payable by the Purchaser in terms of this agreement but remaining unpaid on due date shall bear interest at 2% (two) percent above the prime bank overdraft lending rate charged by Nedbank Bank to its best grade commercial customers on an unsecured basis from time to time. Such rate shall be confirmed and proved by a certificate issued by any manager or assistant manager of any branch of the said bank, which certificate shall be prima facie proof of such interest rate.

3.2 The Developer shall calculate interest as aforesaid from the due date to the actual date of

receipt of payment in cash.


3.3 Each payment made by the Purchaser shall be allocated first to the payment of interest and then to the payment of any other moneys due in terms hereof and thereafter in the reduction of the purchase price, notwithstanding any purported allocation by the Purchaser to the contrary.

4 POSSESSION AND RISK

Possession of the property shall be given to and taken by the Purchaser on registration of

transfer. The risk in the property shall pass to the Purchaser on date of possession from which date the Purchaser shall be liable for the payment of all rates, taxes, levies and service charges imposed by the Municipality and/or Competent Authority and all levies and charges imposed by the Home Owners Association.

5 TRANSFER

5.1 Transfer of the Property shall be taken by the Purchaser when tendered by the Developer

which will be affected as soon as possible after the local authority has issued a clearance certificate for transfer purposes.

5.2 The Purchaser shall and, undertakes to sign all transfer and related documents

necessary and, to pay all bond costs, to give effect to this Agreement within four days of receipt of a written notice to do so by the conveyancer.

5.3 Transfer of the Property shall be affected by the Developer’s conveyancers, Dykes van

Heerden Inc whilst the Purchaser mandates and instructs the Developer’s conveyancers in respect of the registration of a bond over the property, should the Purchaser elect to finance the Property through a bond.

5.4 All legal costs associated with the transfer, excluding all costs relating to the bond and the

registration thereof, of the Property are included in the Purchase Price provided that Dykes van Heerden Inc are instructed to attend to the registration of the mortgage bond if there is a mortgage bond. If not, the purchaser will be liable for the transfer costs. It should be recorded however that no transfer duties will be payable by the Purchaser, since the Developer will pay VAT on the transaction, which is included in the purchase price.

5.5 The Bond Costs not included in the Purchase Price is payable on demand by the

Purchaser to the Bond Attorneys. 6 TITLE AND ESTABLISHMENT CONDITIONS

6.1 The Purchaser shall accept transfer of the Property subject to all conditions of title,

servitudes and township establishment conditions benefiting or burdening the land, whether existing or hereinafter imposed by any competent authority and/or imposed by the Developer in terms of the provisions of clause 7 below. Notwithstanding and without derogating from the generality of the foregoing provisions, the property is:

6.1.1 Sold subject to the condition that on registration of transfer of the Property, the

Purchaser shall become and remain a member of the Avianto Residential Estate Home Owners Association established in terms of section 29 of the Land Use Ordinance, 15/1985 or any such similar ordinance applicable to the establishment of a home owners association (to be known as the Avianto Residential Estate Home Owners Association), subject to the association's constitution, or any amendments thereto;


6.1.2 Furthermore, in the case of the first registration of a sub-division, subject to such conditions imposed by any relevant authority as are customarily imposed on the approval of similar developments, which conditions will be available at the conveyancer for inspection on approval of the sub-division;

6.1.3 Sold subject to the condition that the Purchaser shall on registration of transfer

of the Property (or if the Association is not yet incorporated at such time, immediately upon it’s incorporation) become and remain a member of the Avianto Residential Estate Management Association, subject to the Avianto Residential Estate Home Owners Association's and the Avianto Residential Estate Management Association’s constitution, or any amendments thereto;

6.2 The purchaser furthermore acknowledges that:

6.2.1 He may not sell or otherwise alienate the Property without the transferee binding

himself to become a member of the said Home Owners Association for the duration of his ownership of the Property, and the Association issuing a certificate that it is satisfied that there has been compliance with all its conditions for alienation as determined in the constitution of the Avianto Residential Estate Home Owners Association.

6.2.2 No building and/or any permanent structure may be constructed on the Property

unless it conforms to the Architectural and Aesthetical Guidelines and Design Manual promulgated in terms of the Constitution of the Avianto Residential Estate Home Owners Association from time to time;

6.2.3 The Purchaser is obliged and, herewith undertakes to commence construction of

a single residential dwelling on the property within three (3) years of the date of registration of the first transfer of the Property onto the first Purchaser’s name and, in any event to complete such construction within twelve (12) months after commencement of construction.

6.2.4 Should the Purchaser fail to commence construction or complete the said dwelling

as contemplated in clause 6.2.3 he shall be liable to a pay a penalty equal to double the levies payable by such Purchaser which penalty is to be paid to the Avianto Residential Estate Home Owners Association until such time as his dwelling has been completed. Such penalty levies will double every year following the commencement of the first date of the breach period. In addition, the Purchaser shall lose any rights and privileges attached to the Avianto Residential Estate Home Owners Association as a result of this sale.

6.2.5 No construction of any building and/or permanent structure shall commence

unless:

6.2.5.1 the Architect responsible for drawing up the plans is registered with the said Association as determined in the Constitution and House Rules

6.2.5.2 the Building Plans have been duly approved by the Avianto Residential

Estate Architectural / Aesthetical Committee, 6.2.5.3 the Local Authority; and 6.2.5.4 the Building Contractor responsible for the construction of the dwelling is

registered with the said Association as determined in the Constitution, House Rules and the NHBRC.


6.2.6 No transfer of the Property will be permitted even if it is a forced or liquidated sale unless the Association has issued a certificate stating that all amounts due to the Homeowners Association by all present and past owners of the Property plus an amount equal to three months levies payable in advance have been paid to the Association in full irrespective of whether the transferor of the Property is the member, a sheriff of any Court, a liquidator, an insolvency trustee or any person whatsoever it being specifically recorded that all such amounts shall be paid by such transferor prior to such certificate being issued. The certificate shall only be valid until the date reflected as the validity date on such certificate and once such validity date has expired, if the Property has not been transferred into the name of the transferee, the transferor will be obliged to obtain a new certificate in terms of this clause 6.2.6, it being specifically recorded that no transfer may be effected unless it is certified that all amounts due to the Home Owners Association by all present and past owners of the Property have been paid to the Association in full as at the date of transfer of the Property into the name of the transferee.

6.2.7 In order to make these conditions enforceable against all titleholders in the Estate,

these conditions shall be registered against the title deed of all titleholders as a prohibition against alienation in favour of the said Avianto Residential Estate Home Owners Association.

6.2.8 If copies of the proposed Constitution and Rules of the said Home Owners

Association, House Rules, Architectural and Aesthetical Guidelines and Design Manual and the Environmental Guidelines have not been handed to the Purchaser, it will be made available to the Purchaser to study via the developer’s website www.avianto.co.za, which documentation has been submitted to the relevant authorities for approval; should the authorities require reasonable amendments to these documents in terms of the Township Approval Conditions, the Developer and the Purchaser agree to be bound by such amendments. It is recorded that updates of these documents are always available on the official website of the development and it is up to the purchaser to familiarise him/her/itself with these updates from time to time.

6.2.9 The Purchaser acknowledges the his / her / its attention has been drawn to the

fact that there exists or shall exist a number of important and related agreements and documents in connection with the Home Owners Association, which inter alia deal with the control and administration of the Avianto Residential Estate and the architectural, aesthetical and building requirement for improvements on the property, all of which will be binding on the Purchaser as a member of the association. These documents include the following:

6.2.9.1 Constitution and Rules of the Home Owners Association; 6.2.9.2 Architectural, Aesthetical and Landscape Design Guidelines; 6.2.9.3 Environmental Guidelines; 6.2.9.4 House Rules.

6.3 The Purchaser hereby further acknowledges having studied the above mentioned

documentation which are available at the Sales office and on the official website of the proposed Avianto Residential Estate and agrees that the said documentation is deemed to be read as if incorporated herein.

7 CONDITIONS APPLICABLE PENDING TRANSFER Pending the registration of transfer of the Property the following conditions shall apply: -


7.1 The municipal by-laws and regulations in so far as they cast any duty upon the owner or occupier of the Property shall bind the Purchaser and be enforceable by the Developer;

7.2 The Purchaser may not construct or commence construction of any building or other

structure on the Property without the prior written consent of the Developer. 7.3 The Purchaser shall not sell, cede, alienate, or in any other manner dispose or part with

possession of the Property, (whether temporarily or otherwise) except with the prior written consent of the Developer subject to the provisions of clauses 6 and 21 hereof.

7.4 Prior to the formal incorporation of the Avianto Residential Estate Management Association

and/or the Avianto Residential Estate Home Owners Association in terms of section 29 of the Land Use Ordinance, the Developer, in consultation with its Town Planners and Supervising Architect appointed by the Developer, shall fulfil all the functions of the Avianto Residential Management Association and the Avianto Residential Estate Home Owners Association as contemplated in terms of this agreement.

8 COSTS OF TRANSFER

8.1 The Developer shall pay the Conveyancer at their request, all costs necessary and

incidental to the transfer and registration of the Property into the name of the Purchaser, which shall include, but not be limited to, disbursements, service charges and levies, plus VAT thereon where applicable.

8.2 The Purchaser shall pay the Developers Conveyancer's, at their request all costs

necessary and incidental to the registration of the bond over the Property, which shall include, but not be limited to disbursements, valuation and initiation fees, service charges and levies, plus VAT thereon where applicable.

9 ESTATE AGENTS COMMISSION

9.1 Commission of 4,5% shall be paid by the Developer through the Developer’s Conveyancers to Pam Golding from the proceeds of the sale on the date of registration of transfer, strictly in accordance and subject to the provisions of clause 7 of Schedule A read with the Operating Sole Mandate entered into between the Developer and Pam Golding.

9.2 The said commission shall be deemed to have been earned and payable on date of

registration of transfer of the Property into the name of the Purchaser or on the date that the agreement is cancelled due to any default on the part of the Purchaser (whichever is applicable).

9.3 Notwithstanding anything to the contrary contained in this clause, if this Agreement is

cancelled at any time as a result of any default on the part of the Purchaser, the Estate Agent will be entitled to payment of commission from the Purchaser.

9.4 The Purchaser hereby declares that he was introduced to the property by the Agent and

hereby indemnifies and holds the Developer free and harmless from and against any claim which may be made by any other agent in respect of commission arising out of the sale of the property where such other agent claims to have actually introduced the Purchaser to the property and/or to the Developer in connection with the sale herein recorded.

9.5 The Purchaser also hereby agrees, that with the nec essary consent of the

Developer, the commission due to the Agent, may be paid from the proceeds of


the deposit paid by the Purchaser in accordance wit h clause 2.1 of this agreement, at any time deemed fit and in the sole d iscretion of the Developer.

Purchaser to initial here 10 DEFAULT 10.1 Should the Purchaser commit any breach of this agreement or fail to punctually comply

with any of the terms or conditions of this agreement, then the Developer shall be entitled to give written notice to remedy such breach, and should the Purchaser fail to comply with such notice within 7 (seven) days from date upon which it was sent by pre-paid registered post, the Developer shall be entitled, without further notice and without prejudice to any other rights or remedies which he may have in law, including the right to claim damages, to:

10.1.1 claim specific performance of the terms of this Agreement; or 10.1.2 cancel this Agreement forthwith and without further notice claim and recover

damages from the defaulting party in which event the monies which have been paid shall be retained in trust by the attorneys attending to the transfer of the Property pending the determination of such damages; or

10.1.3 cancel this Agreement and retain all amounts paid as rouwkoop

(compensation for the agreement being cancelled). 10.2 If the Purchaser disputes the Developer's right to cancel and/or remains in possession

of the Property after date of cancellation or purported cancellation, the Purchaser shall continue to pay interest and levies as herein provided in consideration for his continued possession of the Property. In the event of the Developer invoking the assistance of Attorneys for the protection or enforcement of any rights arising in its favour from this agreement the Purchaser shall be obliged to pay all costs charged by such attorneys on the attorney and own-client scale, and if attorney own-client costs are not permissible on an attorney client scale, if the Purchaser is the defaulting party.

11 SUSPENSIVE CONDITIONS This agreement shall be subject to the following suspensive conditions:

11.1.1 The Purchaser obtaining approval by not later than 45 days after acceptance of this offer by the Developer for the granting of a loan by a registered South African Bank of not less than the amount set out in paragraph 6 of Schedule "A" upon the security of a first mortgage bond to be registered over the Property at such rates of interest and on such conditions as are stipulated by the institution/s to which application/s for the loan is/are made. This suspensive condition shall be deemed to have been fulfilled on the date that the Purchaser obtains a quotation and/or pre-agreement statement from any financial institution in terms of which such financial institution offers a loan to the Purchaser in an amount of not less than the amount referred to above and even if such loan is approved subject to the Purchaser's spouse (or any of the directors and/or shareholders and/or members of the Purchaser, as the case may be) interposing himself as surety for and co-principal debtor in solidum with the Purchaser for the fulfilment of all the Purchaser's obligations under the loan. The Developer may in his discretion and without notice to the Purchaser extend the period in which the Purchaser has for obtaining approval for the granting of the loan referred to above by a period of 45 days. The Purchaser warrants that he/she qualifies for such bond and that he/she will obtain such bond within the required time period.


11.1.2 Should the Purchaser not be able to obtain a loan, the purchaser hereby irrevocably authorizes and hereby instructs the Developer’s Bond Originator’s, to submit the loan application on his/her/it behalf to any one or more financial institutions of his/her/its choice and agrees to furnish any additional information or documents required at any given time to procure the bond, whilst the originators shall allocate the bond to be registered to the Developer's Conveyancers in terms of its mandate received from the Purchaser.

11.1.3 Failure on the part of

(a) the Purchaser to sign any application for a bond or any other document/s necessary to procure granting or registration of such bond, and to furnish relevant information or to pay the costs of or incidental to registration of any bond; or

(b) any person nominated to sign a Deed or Deeds of Suretyship as contemplated above to sign such Deed of Deeds of suretyship or to furnish relevant information upon demand by the Developer or any prospective Bondholder

shall constitute a breach hereof by the Purchaser within the meaning of Clause 10

above hereof or alternatively shall, at the option of the Developer, entitle the Developer to regard clause 11.1 hereof as having been duly fulfilled.

11.1.4 Should the Purchaser’s application for the said loan be successful the Purchaser

shall arrange that the bank or financial institution deliver written proof thereof to the Developer or its nominee undertaking payment subject to the bank’s normal terms and conditions. As soon as the General Plan and the Services in respect of the Property have been approved and installed, the Developer shall be entitled to call for a guarantee as stipulated in clause 2.2 of the Conditions of Sale.

11.1.5 Notwithstanding anything to the contrary contained in this agreement, should the

Developer receive an unconditional offer for the Property on terms acceptable to it during the 45 (forty-five) day period stipulated in 11.1.1 above (or the extended period referred to in 11.1.1), the Developer shall be entitled to notify the Purchaser of such offer, giving the Purchaser three (3) Business days written notice to waive the benefits of clause 11.1.1 and to match the said unconditional offer received by the Developer.

11.1.6 Should the Purchaser fail to waive the benefits of clause 11.1.1 or fail to match the

offer contemplated in Clause 11.1.5 within the stipulated time, then this agreement shall lapse forthwith and be null and void and the Developer shall be entitled to accept the said offer.

11.1.7 Should no amount be inserted in clause 6 of Schedule "A", this agreement shall be

deemed not to be subject to the granting of a loan upon the security of a mortgage bond and this suspensive condition will not be applicable."

11.2 That the Developer obtains all necessary consents from the Local Authority.

11.3 That the Developer be entitled, within reason, to determine the economic viability of the Development in its present form and cost structure. If the Developer does not notify the Purchaser in writing by 30 April 2013, of its decision not to proceed with the development, this Agreement shall be valid and binding between the parties in all respects. The Developer shall be entitled to extend this date by another 6 months by giving written notice to the Purchaser thereof prior to the abovementioned date. The provisions of this clause


are for the benefit of the Developer who may waive it at any time by giving written notice to the Purchaser.

11.4 The Developer obtaining a Section 82 Certificate in terms of the Town Planning and

Townships Ordinance (15 of 1986) in respect of that portion of the Township on which the Property is situated within 24 (twenty fo ur) months from date of signature of this agreement by the Developer.

Purchaser to initial here 12 NO WITHHOLDING OF PAYMENTS

The Purchaser shall not be entitled to withhold, delay or abate payment of any amounts due to

the Developer in terms of this agreement by reason of any breach or alleged breach of the Developer's obligations.

13 DEPOSIT

In the event of the Purchaser not complying with clause 2.3, or should the Purchaser cancel this agreement for whatever reason or, purport to cancel this agreement or, with the consent of the Developer substitute or replace the Property as set out in Schedule A with another Property in the Development, the Conveyancer shall be entitled to an administration fee of R500, 00 (five hundred rand) plus VAT which amount is to be subtracted from the deposit. Should the Purchaser only intend to replace the Property with another Property with the consent of the Developer and upon signature of the agreement pertaining to the newly selected property, the Purchaser shall reimburse the Conveyancers with the full administration fee of R500.00 to fully make up the full Purchase price.

14 JURISDICTION Notwithstanding the Developer’s right to institute legal proceedings in any court having

jurisdiction, the Purchaser hereby consents in terms of section 45 of the Magistrate's Court Act no 32 of 1944 (as amended) or any legislation passed in substitution thereof to the jurisdiction of the Magistrate's Court, in any action instituted by the Developer arising out of this agreement.

15 LEGAL PERSONA AND SURETYSHIPS

15.1 It is a material term of this agreement that s hould the signatory of the Purchaser act in a representative capacity for a third party, the trustees of a trust or company or close corporation, that the person so acting whe ther on behalf of a third party and/or as trustee, and/or as director and/or as a m ember, hereby confirms and warrants his or her authority to bind his principal , the trustees, company and or close corporation.

15.2 The signatory hereby personally binds himself as surety and co-principal debtor in

solidum to the Developer with the Purchaser, for t he due and proper performance of all the Purchaser’s obligations in terms of this agreement as well as the due payment of the Purchase Price and all other payment s due by the Purchaser under this agreement The signatory hereby renounces the b enefits of the exceptions in respect of excussion; division, no cause of action; no value received and, cession of actions. The signatory acknowledges and warrants that he knows and understands the meaning and the full force and effe ct of such benefits.

15.3 Should the Purchaser be under any personal or legal disability, (now or in the

future), to fulfil his or its obligations in terms of this agreement, the signatory shall


be and, remain bound by this suretyship until all t he Purchaser’s obligations have been fully discharged.

Purchaser to initial here 16 VALUE ADDED TAX The Developer is registered as a Vendor in terms of the Value Added Tax act, 1991, and the

purchase price payable in terms hereof includes Value Added Tax, set out in Schedule A. 17 GENERAL 17.1 The terms of this agreement form the sole contractual relationship between the parties

hereto and no variation of this agreement shall affect the terms hereof unless such variation shall have been reduced to writing and signed by all the parties hereto.

17.2 No extension of time, concession or other indulgence granted by either party to the other

shall be deemed in any way to affect, prejudice or derogate from the rights of such party in any respect under this agreement, nor shall it in any way be regarded as a waiver of any rights hereunder, or a novation of this agreement.

17.3 Each of the parties hereby undertakes to sign or execute all documents necessary to give

effect to this transaction and the registration of transfer forthwith. Without limiting the generality of the foregoing including the necessary power of attorney, transfer duty declarations and affidavits when requested by the conveyancers to do so.

17.4 If there is more than one Purchaser in terms of this agreement, then the liability of each of

them shall be joint several and in solidum under renunciation of the benefits arising from the legal exception de duobus vel pluribus reis debendi, excussion and division.

17.5 The Purchaser shall not have any claim against the Developer, its contractors, employees

and invitees as a result of any damage to the Property or in respect of any nuisance, noise or other inconvenience or in respect of personal injury or in respect of public liability caused by or arising from building or similar activities being conducted on or in the development.

18 ADDRESSES FOR SERVICE 18.1 The parties hereby choose domicilium citandi et executandi (being the chosen address

that the parties each choose as the address where summonses, applications, warrants of executions, other legal documents and processes, notices or other documents in terms of the agreement will be served on them) for all purposes under this agreement at the respective addresses recorded in Schedule A hereto.

18.2 Any notice to any party shall be addressed to him at the address referred to in paragraph

18.1 above and either sent by prepaid registered post, telefax or delivered by hand. In the case of any notice:

18.2.1 Sent by prepaid registered post, it shall be deemed to have been received, unless

the contrary is proved, on the third business day after posting; 18.2.2 Sent by telefax, it shall be deemed to have been received, unless the contrary is

proved, on the day such notice is transmitted by the sender;


18.2.3 Delivered by hand, it shall be deemed to have been received, unless the contrary is proved, on the date of delivery, provided that such date is a business day or otherwise on the next following business day.

19 REPRESENTATIVE CAPACITY In the event of the purchasing signatories hereto b eing trustees for legal entities formed

or to be formed, then:

19.1 the purchasing signatories shall be deemed to be sureties and co-principal debtors for such legal entities in terms of clause 15 above;

19.2 in the event of the legal entities not being f ormed or, having been formed, failing

to ratify and adopt this agreement without modifica tion within 30 (thirty) days of signature hereof, or having done so and thereafter failing to carry out all the terms and conditions herein on due date, then the s aid signatories shall be liable to the developer in their personal capacities and t ake transfer subject to all the other terms and conditions of this agreement .

Purchaser to initial here 20 ELEVATION AND GRADIENT OF LAND

It is recorded that the Developer is in the process of developing the land for installation of services and the property purchased may have a different elevation and/or gradient once this has been completed as a result of soil transfer.

21 RESALE OF PROPERTY

21.1 Until the Developer has sold all stands and units in the Avianto Development, the

Purchaser shall not in any manner alienate the property prior to date of registration of transfer thereof into the name of the Purchaser, without the prior written consent of the Developer which consent shall not be unreasonably withheld provided that only the Developer's attorneys must be appointed to attend to any such transfers.

21.2 Only an estate or property agent accredited by the Association may be employed in the

re-sale or letting of any property as Avianto Residential Estate, which accreditation may be withdrawn by the Association in its discretion.

22 RESERVATION OF DEVELOPMENT RIGHTS

22.1 During the Project Period the Purchaser shall not prevent or hinder in any way the Developer from:-

22.1.1 gaining access to and egress from the Development.

22.1.2 continuing its building and/or construction operations at the

Development.

22.1.3 marketing and selling any Erven or sectional title units.

22.1.4 generally carrying on its business operations.

22.2 The Developer has the right and shall be entitled to build and establish on the Development any amenities and facilities as it in its sole discretion deems fit. The Developer has the right to subdivide from the Development the sites for such


aforesaid amenities and facilities as separate erven and shall be entitled to dispose of and/or operate the aforementioned amenities and facilities for its own benefit, separate and independent from the remainder of the Development.

22.3 The Developer has the right in its sole discretion, to establish and locate the amenities and facilities referred to in 22.2 on any portion of the Development, save on such Erven that have already been sold to owners other than the Developer, with the approval of the Local Authority.

22.4 The Developer shall also be entitled, in the Developer’s sole discretion, as and

when the Developer chooses to do so, to rezone to residential and/or commercial and/or hotel and/or business and/or special or any other zoning that the Developer chooses, those erven which have not been sold as at the date of signature hereof by the Developer and that portion of land marked on the site development plan as future development property and/or sub-divide in whichever manner the Developer chooses any of the same, to change the land use on the general plans relating to such erven and to register whatever servitudes are certified as being necessary or desirable by the townplanner appointed by the Developer in such positions as such townplanner certifies as being appropriate. The Purchaser hereby irrevocably consents to the aforesaid and irrevocably grants a Power of Attorney to the Developer to enable the Developer to attend to the same whenever the Developer deems it necessary to do so. In addition the Developer shall be entitled to amend the boundaries of the common area provided that such amendment does not increase or decrease the common areas by more than 10%. The Developer shall also be entitled to add new erven and sections to the Development and to add new phases onto the Development by the addition of land which does not at present form part of the Development and/or to constitute such land as extensions of the township on which this Development is situated. The Purchaser acknowledges that such extensions may be connected to the Development through internal road connections and that certain services and security arrangements may be shared with these extensions including but not limited to the right of usage of and access to the Development amenities. In the event that such extensions have their own homeowners associations, the Developer shall be entitled to conclude agreements between such homeowners associations and the Avianto Homeowners Association regarding the relationship between such homeowners associations and the Avianto Homeowners Association and the contributions to be paid to the Avianto Homeowners Association by such homeowners associations, on terms to be decided by the Developer. The Purchaser hereby irrevocably consents to all of the aforegoing and hereby irrevocably grants the Developer Power of Attorney to enable the Developer to attend to the same and to sign any documentation on behalf of the Purchaser to give effect to the provisions of this clause.

22.5 The Purchaser specifically agrees not to make any objection, submission, appeal or claim or bring any proceedings in relation to any development application made by the Developer in respect of the Development or do anything else which would, or omit to do anything else which by that omission would, prevent the Developer from completing the Development or selling erven within the Development.

23 SPECIAL CONDITIONS

The Purchaser acknowledges that he is aware:

23.1 That, as a member of the Home Owners Association, he/she shall be obliged to pay levy contributions with effect from date of registration of transfer and that as a member of the Avianto Residential Estate, hereinafter referred to as the Estate, he/she shall be


obliged to pay any annual subscription fee as member for the use of the Estate facilities as and when due each year;

23.2 That the proximity of the property to the Estate Sporting, Recreational and Leisure

Facilities carries with it the possibility of damage to the dwelling or injury to the Purchaser, his guests, employees and other occupants of the Estate. The Purchaser hereby absolves the Developer, the Home Owners Association and the Estate from any liability for any loss or injuries so suffered;

23.3 That the Property has been provided with an electrical service connection point at, or as

close as possible to the Property’s boundary wall, with a capacity of 80A, single phase, rated 230V.

24 SPORTS AND OTHER FUNCTIONS

24.1 The owner of this property shall at the discretion of the Developer have a right of access to the sporting / recreational / leisure facilities created by the Developer or to be created by the Developer according to the township development plan provided that the owner shall gain access to the said facilities only by way of the roads and the pathways constructed within the township.

24.2 Any charges linked to the sporting facilities offered and to be offered will remain market

related in keeping with similar resorts of the same standard.

24.3 The following services will inter alia be supplied by the Home Owners Association upon the terms and conditions set out in its articles of association and that the cost thereof shall be covered by the monthly levy payable to the Home Owners Association:

24.3.1 maintenance of sidewalks, roads, verges and other common areas; 24.3.2 access control, electrified fencing and security; 24.3.3 refuse removal; 24.3.4 landscaping of common areas; 24.3.5 water and electricity supplies to common areas; 24.3.6 insurance of buildings and structures on common areas; and 24.3.7 administration of the Home Owners Association.

24.4 The following services could be provided by the Home Owners Association at the

expense of the owner of the Property by agreement between the owner and the Home Owners Association:

24.4.1 garden maintenance; 24.4.2 maintenance of the interior and exterior of the dwelling, the roof and all

boundary walls and other structures; and 24.4.3 insurance of the dwelling and its contents.

24.5 The Developer shall be entitled to cede, assign and delegate all or any of its rights and

its obligations in terms of this agreement.

25 AVIANTO RESIDENTIAL ESTATE HOME OWNERS ASSOCIATI ON 25.1 The Purchaser shall –

25.1.1 become and whilst he is the registered Owner of the property, remain a member of the Avianto Residential Estate Home Owners Association and if the Purchaser is lawfully prohibited from becoming or remaining a member of the Avianto Residential Estate Home Owners Association, then the Purchaser shall,


irrespective of such prohibition, comply with, conform and act according to the rules of the Avianto Residential Estate Home Owners Association as if being a formal member of the Avianto Residential Estate Home Owners Association, as is described in this agreement;

25.1.2 conform to and comply with the memorandum and articles of the Avianto

Residential Estate Home Owners Association; 25.1.3 conform to and comply with the rules formulated from time to time by the

directors of the Avianto Residential Estate Home Owners Association in accordance with the powers vested in them in the memorandum and articles of the Avianto Residential Estate Owners Association; and whilst he is a member of the Avianto Residential Estate Home Owners Association, and with effect from transfer, pay all fees, levies raised and charged by the Avianto Residential Estate Home Owners Association against the members of the Avianto Residential Estate Home Owners Association.

25.2 The Purchaser –

25.2.1 hereby irrevocably authorizes the Developer to do all such things as may be necessary to enroll him as a member of the Avianto Residential Estate Home Owners Association with effect from transfer; and

25.2.2 shall remain as a member until he ceases to be the Owner of the property.

25.3 The Purchaser shall not sell the property to any person who has not bound himself to become a member of the Avianto Residential Estate Home Owners Association with effect from the date of transfer of the property in that person’s name, nor shall the Purchaser be entitled to transfer the property unless and until he has received from the Avianto Residential Estate Home Owners Association a certificate stating that all amounts owing by the Purchaser to the Avianto Residential Estate Home Owners Association have been paid and that the proposed Purchaser has bound himself to the rules of the Avianto Residential Estate Home Owners Association in writing.

25.4 The conditions of clause 25.3 will be registered as a condition of title of the property and

the Purchaser undertakes to sign any documents that may be required for that purpose. 25.5 The Avianto Residential Estate Home Owners Association shall be the registered

Owner of the “Private Open spaces” in the estate and shall own the guardhouses and any other amenities in the estate which the Avianto Residential Estate Home Owners Association may erect or construct, and shall keep and maintain the same in good order and condition.

25.6 The Developer shall establish the Avianto Residential Estate Home Owners Association

and relinquish its membership therein in relation and at the rate of the erven being transferred to Purchasers, without any obligation to make payments or contributions towards payments, as is described in 25.1.3.

25.7 One of the objectives of the Avianto Residential Estate Home Owners Association is to

cause the guardhouses and entrance restrictions to be established to the entrances of the estate. To the extent that all the Owners’ consents are required, the Purchaser hereby irrevocable consents thereto and appoints the Developer as its duly authorized agent to do all that is necessary and required to be done including to obtain the consent of the local authority.


26 ROAD RESERVE

The Purchaser's attention has been drawn to the site development plan and to the fact that there is in fact a road reserve in the Development.

27 SIGNATURE

27.1 This document will be signed by or on behalf of the Purchaser or its Director or other

representative before it is signed on behalf of the Developer, and hence this document shall constitute an offer to the Developer by the Purchaser to buy the Property at the price and subject to the other terms and conditions set out in this document and the Purchaser or its Director or other representative hereby agrees that this offer shall be irrevocable and remain open for acceptance by the Developer for a period of 90 (ninety) days from the date of signature hereof by or on behalf of the Purchaser.

27.2 The parties agree that the receipt of this document by the Developer or its

representative, duly signed by or on behalf of the Purchaser, shall constitute acceptance of the Purchaser's said undertaking not to retract this offer for the said period of time and that no further communication by the Developer to the Purchaser is necessary for the acceptance of the Purchaser's said offer not to retract the offer to purchase.

27.3 As soon as the Developer shall have signed this document a binding agreement of

purchase and sale shall come into being between the Developer and the Purchaser in spite of the fact that the Developer may not have communicated the fact of such signature and/or acceptance to the Purchaser. No notice to the Purchaser of the Developer's acceptance of the offer is required to bring about the agreement.

27.4 If the Developer accepts the Purchaser's offer described in 27.3, the sale which will

come into being will be subject to:- 27.4.1 The provisions contained or referred to in this document; 27.4.2 The proclaimed Conditions of Establishment issued in respect of the Township; 27.4.3 The conditions of title contained in the title deed/s of the Township land, duly

amended in terms of any relevant provision of the conditions of establishment or still to be amended at the instance of the director or the local authority or the registrar of deeds and/or the Developer.

27.5 To ensure that the Purchaser is made aware of the fact that the Developer has

accepted the offer, the Developer shall use its best endeavours to despatch a notice to the Purchaser (as contemplated in the relevant provisions of this agreement relating to notices) of such acceptance of the Purchaser's offer and of the date on which it took place. The contract will remain in full force and effect even if no such notice is given.

28 INCONVENIENCE

The Purchaser acknowledges that on taking possessio n and occupation of the Property, the buildings and facilities on the adjacent or nea rby stands comprising the Development and the estate, particularly the Private Open Space s, the gatehouses and the security fences may be incomplete and that occupants of the Property may consequently suffer inconvenience from building operations and from noi se and dust resulting therefrom and


that the Purchaser shall have no claim whatsoever a gainst the Developer by reason of any such inconvenience.

Purchaser to initial here 29 INDEMNITY

The Purchaser hereby indemnifies the Developer agai nst all claims of whatsoever nature which may arise out of any injury to any person or any damage to any property in or on the Property or by virtue of any defects in the dwe lling situated on the Property and all other claims relating in any way whatsoever to the dwelling on the Property and hereby waives all claims which it may have against the Dev eloper at any time arising out of the use of the dwelling on the Property or any access t o or use of the Property. In addition, the Purchaser hereby indemnifies the Developer agai nst all claims of whatsoever nature which may arise out of or as a result of the dwelli ng not being constructed.

Purchaser to initial here 30 PURCHASER'S RIGHT TO COOL OFF AFTER DIRECT MARKETIN G IN TERMS OF

THE CONSUMER PROTECTION ACT The Purchaser's attention is drawn to the provisions of clause 16 of the Consumer

Protection Act in terms of which the Purchaser may rescind this transaction without any reason or penalty by notice to the Developer in writing or another recorded manner and form within 5 (five) business days after this contract was concluded if this agreement resulted from any direct marketing. This remedy is in addition to and not in substitution for any right to rescind this agreement which may otherwise exist in law between the Developer and the Purchaser.

31 CONSUMER PROTECTION ACT 31.1 Insofar as the Consumer Protection Act governs this agreement and/or the

relationship between the parties, it is specifically agreed that in the event of any clause or sub-clause herein not being permitted in terms of the Consumer Protection Act, such clause or sub-clause shall be severed from this agreement and be treated as if it were not a part of this agreement. All provisions which automatically apply to an agreement of this nature in terms of the Consumer Protection Act are automatically incorporated herein.

31.2 Insofar as the Consumer Protection Act ("CPA") governs this agreement, the parties

attention is drawn to the fact that Section 55(2) provides that, except to the extent contemplated in subsection (6), every consumer has a right to receive goods that:-

(a) Are reasonably suitable for the purposes for which they are generally

intended; (b) Are of good quality, in good working order and free of any defects; (c) Will be useable and durable for a reasonable period of time, having regard to

the use to which they would normally be put and to all the surrounding circumstances of their supply;

(d) Comply with any applicable standards set out under the Standards Act 1993 (Act No. 29 of 1993), or any other public regulation.

31.3 Section 55(6) of the CPA provides that subsection (2)(a) and (b) do not apply to a

transaction if the consumer:-

(a) Has been expressly informed that the particular goods were offered in a


specific condition; and (b) Has expressly agreed to accept the goods in their condition, or knowingly

acted in a manner consistent with accepting the goods in that condition.

31.4 The Purchaser confirms that he/she has carefully in spected the Property and hereby expressly agrees to accept the Property in t he condition as it stands.

Purchaser to initial here

MANOR MAZE INVESTMENTS 2 (PTY) LTD

1. THE DEVELOPER Manor Maze Investments 2 (Pty) Ltd Reg. No: 2008/000485/07 its Successors in Title or Assigns c/o Jacobs Robbertse Attorneys PO Box 2945 9 Judges Avenue, Windsor, Randburg Northcliff 2115 Tel: + 27 (0) 11 476 1403 Fax: +27 (0) 11 476 1347 E Mail: [email protected] 2. BANKING DETAILS Account Name : Dykes van Heerden Inc Bank : ABSA Branch : Sandton Centre Account Number: 405 579 4028 Branch Code : 331 155 (global code for Electronic transfers – 632005) Ref : Avianto/Surname/ Erf number 3 . DETAILS OF PURCHASER It is noted that should there be more than one natural person as Purchaser, such co-purchasers are mentioned in 3B to 3D (and further if applicable): Purchaser - Natural person/s

3.1 A DETAILS OF PURCHASER (1)

Full Names:

I.D. No:

Married in/out of community of property/foreign law:

Full Names of Spouse:

I.D. No:

Residential Address:

Postal Address Postal Code

Telephone No:


Cell No:

Fax No:

E-mail Address:

3.1 B DETAILS OF PURCHASER (2) – IF APPLICABLE

Full Names:

I.D. No:



I.D. No:



Telephone No:

Cell No:

Fax No:

E-mail Address:

3.1 C DETAILS OF PURCHASER (3) – IF APPLICABLE

Full Names:

I.D. No:



I.D. No:



Telephone No:

Cell No:

Fax No:

E-mail Address:

3.1 D DETAILS OF PURCHASER (4) – IF APPLICABLE

Full Names:

I.D. No:

Married in/out of community of property:



I.D. No:



Telephone No:

Cell No:

Fax No:

E-mail Address:

Purchaser – Legal person 3.2 IF PURCHASER IS A COMPANY OR CLOSE CORPORATION OR T RUST

Name of company/CC /Trust

Company/CC Registration/IT No

Full Names of Signatory:

Registered Address:


Telephone No:

Cell No:

Fax No:

E-mail Address:

4 . THE PROPERTY The proposed Erf _________(also known as Le Jardin Avianto Estate Sales no _____)

of the proposed township to be established and to be known as Drift Extension _____ situated in the Municipality and Division of Muldersdrift, Mogale City, Gauteng Province as demarcated on the Layout Plan (attached hereto marked “Schedule B”) of the above mentioned Drift Extension. Measuring: Approximately ________________________m²

5 . PURCHASE PRICE 5.1 Purchase Price Including VAT: R________________________-_____

(______________________________________________________) 5.2 Payment of purchase price in accordance with clause 2.1 and 2.2 of the agreement:

5.2.1 a deposit of ____________% ( _______________________percent) of the Purchase

price in an amount of R_________________-___________ (___________________________________________________________________) within 30 [thirty] days from the signature date of this agreement by the Purchaser;

5.2.2 the balance is payable on registration of the property in the name of the Purchaser.


6. SUSPENSIVE CONDITION AND BOND APPROVAL

(In accordance with clause 11.1 of the Agreement, should this clause not be completed this transaction shall be deemed to be a cash transaction) 6.1 This sale is subject to the Purchaser obtaining a loan from a recognized bank or

financial institution on its normal terms and conditions and, secured by a mortgage bond against security of the Property for an amount of R_________________-_____(_______________________________________________________________) approved in principle within 45 (forty five) days of signature hereof by the Developer.

7 . ESTATE AGENT The Purchaser warrants that the under mentioned estate agent first introduced him to the property and that no other party was instrumental or induced him to enter into this agreement. Accordingly the Purchaser declares the said estate agent to be the effective cause of this transaction and hereby indemnifies the DEVELOPER against any and all claims for the payment of agent's commission by any other party. Estate Agent and Agency: ___________________________________ Signature: ___________________________________ SIGNED BY THE PURCHASER AT_________________________________ON THIS ____________ DAY OF __________________2013 WITNESSES 1 Signature ___________________________ Name & Address ______________________________________________ 2 Signature ___________________________ Name & Address ______________________________________________

______________________________

PURCHASER SIGNED BY THE DEVELOPER AT_________________________________ON THIS ___________ DAY OF ________________________2013 WITNESSES 1 Signature ____________________________ Name & Address _______________________________________________ 2 Signature ___________________________ Name & Address _______________________________________________

________________________________ DEVELOPER

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AVIANTO RESIDENTIAL ESTATE SALES AGREEMENT · 2016. 6. 21. · Dykes van Heerden Inc are instructed...

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