{"id":21750,"date":"2013-08-07T18:58:59","date_gmt":"2013-08-07T16:58:59","guid":{"rendered":"http:\/\/www.myza.co.za\/is-suspensive-condition-bound-by-additional-loan\/"},"modified":"2013-08-07T18:58:59","modified_gmt":"2013-08-07T16:58:59","slug":"is-suspensive-condition-bound-by-additional-loan","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/is-suspensive-condition-bound-by-additional-loan\/","title":{"rendered":"Is suspensive condition bound by additional loan?"},"content":{"rendered":"

\t\t\t<\/span><\/p>\n

This week, a reader has sought the Property Poser experts\u2019 advice about a suspensive condition on an offer to purchase a fixed property.<\/p>\n

She seems to have signed an offer that contained a suspensive condition relating to the successful acquisition of bond finance.<\/p>\n

The finance was approved but the reader applied for a further loan to cover the additional costs, including transfer duty and legal fees.<\/p>\n

The reader explains that the bank rejected her application for the additional sum and wants to know whether the seller would be able to sue her for breach of contract if she cannot afford to go ahead with the transaction.<\/p>\n

Sean Radue, of Radue Attorneys<\/a> in Port Elizabeth<\/a>, says an offer to purchase is simply a contract between a seller and potential purchaser.<\/p>\n

\u201cWhen the offer is accepted by a seller, it becomes a binding contract between the two parties.\u201d<\/p>\n

In this instance, the contract contained a suspensive condition regarding the financing of the property but didn\u2019t address any further costs, says Radue.<\/p>\n

\u201cA suspensive condition should be worded in such a way that it is specific about the purchaser\u2019s requirements.\u201d<\/p>\n

As the offer is made by the purchaser, Radue says it should be personal to his or her circumstances.<\/p>\n

\u201cIt should address the extent of the financing required, which is typically expressed as a percentage of the full bond, and any additional amounts needed to be in a position to purchase the property.\u201d<\/p>\n

The bank is not a party to the contract and must abide by certain requirements, in particular the National Credit Act, when considering whether an applicant is to be successful in securing bond finance, says Radue.<\/p>\n

According to Radue, a contractual stipulation that could give rise to a financial penalty is not a consideration for a bank in approving additional finance.<\/p>\n

\u201cUnless there are additional suspensive conditions that remain unfulfilled, the contract is now binding, as the bond financing has been approved.\u201d<\/p>\n

Up to this point, the operation of the contract has been suspended pending the fulfilment or waiver of the suspensive condition, says Radue.<\/p>\n

\u201cThe failure to secure the additional finance is not a breach of the contract as such.<\/p>\n

\u201cThe actual breach, if our reader intends to derail the sale, will probably be as a result of her not signing the necessary documentation to permit the transfer of the property from seller to purchaser.\u201d<\/p>\n

Radue says the seller would, on the facts provided, probably have a claim for breach of contract and any damages suffered as a result thereof.<\/p>\n

\u201cThe longer our reader waits to address the situation, the more the seller\u2019s damages could accrue as a result of missed opportunities with other potential buyers.\u201d<\/p>\n

If the reader is really not in a position to continue, Radue says she should approach the seller sooner rather than later to attempt to resolve the matter amicably rather than allow it to escalate to legal proceedings.<\/p>\n

\nThese businesses support MyPE<\/a>:<\/strong><\/p>\n

MyPE<\/a> supports PE business:<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

This week, a reader has sought the Property Poser experts\u2019 advice about a suspensive condition on an offer to purchase a fixed property. She seems to have signed an offer that contained a suspensive condition relating to the successful acquisition of bond finance. The finance was approved but the reader applied for a further loan […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[1289,5],"class_list":{"0":"post-21750","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-south-africa","7":"tag-mype","8":"tag-port-elizabeth-2","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/21750","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=21750"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/21750\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=21750"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=21750"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=21750"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}