What You Don’t Know About the Offer to Purchase Could Cost You

Signing an Offer to Purchase (OTP) feels like the exciting part — the moment the deal is done. For many South Africans, it is also the moment they unknowingly commit to terms they do not fully understand. Here is what most people miss.

Signing Is Not a Formality — It Is the Point of No Return

Once both parties have signed and all suspensive conditions are met, the OTP is a binding contract. There is no general cooling-off right for properties above R250,000, which covers nearly every residential transaction in South Africa today. Remorse does not entitle you to cancel. Walking away could expose you to a damages claim, loss of your deposit, or both. Read everything before you sign.

The Bond Clause Has a Deadline — Miss It and You Lose the Property

Most buyers include a “subject to bond approval” condition, which is sensible. What buyers often miss is that this condition has a time limit, typically 21 to 30 days. If you do not apply to a bank immediately after signing, or if your application drags, the seller can invoke the escape clause: they accept a second, unconditional offer and give you just 48 hours to either waive or fulfil your bond condition. If you cannot, you lose the property. Apply for finance the same day you sign.

Voetstoots Protects the Seller, Not You

The voetstoots clause, standard in almost every OTP, means you are buying the property as it stands, defects included. Most buyers assume this only covers cosmetic issues. It covers far more: a leaking roof structure, rising damp, failing electrical systems, or compromised foundations. The clause is enforceable unless the seller knew about the defect and deliberately concealed it, and proving deliberate concealment in court is difficult and expensive.

Before signing, commission an independent property inspection. This is not standard practice in South Africa the way it is in other countries, but it is one of the most valuable things you can do. Any defects uncovered should be recorded in the OTP with a clear agreement on who fixes them and by when.

Fixtures Are Included — Unless They Are Not

South African law holds that items permanently attached to the property transfer with it. In practice, disputes over what stays and what goes are among the most common post-signing arguments. Curtain rods, light fittings, built-in braais, solar panels, inverters, garden irrigation systems, borehole pumps, and pool equipment are all frequent flashpoints.

If you are the buyer, list everything you expect to be included. If you are the seller and you want to take something, exclude it explicitly in the OTP. Assumptions are not enforceable.

Compliance Certificates Are the Seller’s Problem — But Only If the OTP Says So

Sellers are generally expected to provide electrical, electric fence, gas, and (in many municipalities) plumbing compliance certificates. In coastal areas, a beetle certificate is also typically required. But “generally expected” is not the same as “legally guaranteed”. The OTP must explicitly state that these certificates are the seller’s responsibility and must be provided before transfer.

If the OTP is silent or vague on this point, you may find yourself negotiating or paying for certificates that you assumed were covered.

Marital Status Can Invalidate the Entire Deal

If either party is married in community of property, they cannot sell or mortgage property without their spouse’s written consent. An OTP signed without that consent is void. This catches people out more often than you would expect, particularly in cases of separation, where one spouse attempts to sell without the other’s knowledge or agreement.

If you are the buyer, always confirm the seller’s marital status and, if relevant, obtain the spouse’s signature on the agreement before proceeding.

Occupational Rent Can Be Unexpectedly Expensive

If you take occupation before transfer registers, or the seller stays on after transfer, occupational rent applies. This is often set at 1% of the purchase price per month. On a R2 million property, that is R20,000 a month. Transfers can take 10 to 12 weeks. Scrutinise this clause carefully and negotiate the rate if necessary before signing.

Get Independent Advice Before You Sign

The OTP process can feel fast-moving, and it is easy to sign under pressure. Regardless of how straightforward a deal appears, nothing stops you from asking a conveyancing attorney to review the OTP before you sign — the cost is modest relative to the transaction, and the protection is significant. An attorney acts solely in your interest and can flag terms that may not be immediately obvious to a non-lawyer.

 

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.