Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town offices of STBB. She is an admitted Attorney, Notary Public and Conveyancer with many years of experience in the field of property law and conveyancing. She is also the firm's Marketing Director and attends to external publications for the firm as well as conducts ongoing training for estate agent and bankers training and is a regular seminar presenter for attorneys and property practitioners.

Property Law Update | Issue 02 – 2018

MUST A RIGHT OF FIRST REFUSAL (PRE-EMPTIVE RIGHT) IN RESPECT OF LAND REALLY BE IN WRITING?

Mokone v Tassos Properties CC and Another (CCT113/16, CCT291/16) [2017] ZACC 25; 2017 (10) BCLR 1261 (CC); 2017 (5) SA 456 (CC) (24 July 2017)

Yes and no. For long, and because of sound policy considerations, our law ruled that pre-emptive rights relating to the sale of immovable property must be in writing in order to be valid and binding. For example, a 12-month lease agreement contains a right of pre-emption in favour of a tenant. One further oral renewal of the lease follows and thereafter the landlord and tenant make a one-line entry on the ‘old’ lease mentioning it is extended for a further period. During this further period, the landlord sells the property subject to the lease. The lease expires and the tenant refuses to vacate, quoting the pre-emptive right that existed in the old lease. One of the findings in this matter was that the granting of a pre-emptive right is not an ‘alienation’ and therefore needs not comply with the “in writing and signed” requirements of the Alienation of Land Act, rendering the provision in the ‘old’ lease still valid. This is a dramatic change to the previous position. This despite, transparency and considerations relating to the accuracy of recall if the provisions of an agreement is not reduced to paper, still call for such agreements to be in writing.

The Judgment
Summary of the Judgment

STBB’s STSMA REFERENCE GUIDE

In this, the forty-fifth set of notes for your STSMA Reference Guide, Prescribed Management Rule 24 is discussed

Prescribed Management Rule 24
(N.B. Print in landscape)