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Property Law: land claims on immovable property sold

It appears that most of the land claims relates to agricultural land, therefore it is very important to check with your seller whether there is a land claim pending against the property to be sold.

It is not illegal to sell land that has a claim on it, but this must be disclosed to the buyer by the seller.

In terms of the Restitution of Land Rights Act 22 of 1994, once a notice is published in the Government Gazette to confirm a claim meeting the administrative requirements has been received:

  • no person may in an improper manner obstruct the passage of the claim;
  • no person may sell, exchange, donate, lease, sublease, rezone or develop the land in question without having given the Regional Land Claims Commissioner one month’s written notice of his or her intention to do so, and, where such notice was not given in respect of –
    • any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision ore rezoning or grant any other order if deems fit;
    • any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order if deems fit.

Therefore, the seller can proceed with the sale of the property if written notice in the required format is provided to the Regional Land Claims Commissioner (“RLCC”) of his intention to sell the land one month before any agreement is signed. After such notice to the RLCC the seller can continue to sell the property.

Even if the seller is unaware of any pending land claims, the purchaser can still demand that an indemnity or disclosure is included in the deed of sale.

It is very important that the seller and purchaser take the necessary precautions to ensure that sufficient guarantees and warranties are provided in terms of the sale agreements. This will help to avoid later regrets and the cancellation of agreements by the RLCC preventing the sale of a property.

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