Legal Articles

In August 2018, the Western Cape High Court provided an answer to the question which asked if only one spouse married in community of property may sign a sole mandate agreement with an estate agent or agency.

Sole Mandate Meaning

A sole mandate is an agreement between a homeowner and an estate agent which provides the instruction that only the agency in question may market and sell a property on behalf of the seller.

The sole mandate agreement must clearly specify the time, price and commission payable as well as the terms and conditions of the mandate.

Sole Mandate Agreement and Marriage in Community of Property

There was a case brought to the Western Cape High Court in which a man signed a sole mandate agreement in favour of Rawson Properties.

The gentleman signed the mandate at a time when he was getting divorced from his wife, to whom he was married in community of property. His wife did not co-sign the sole mandate agreement with Rawson Properties.

Rawson Properties provided a purchaser for the property in question who was willing and able to pay the full asking price.

However, this offer was not accepted and the property was subsequently sold to a purchaser introduced by a different estate agency.

As a result, Rawson Properties filed a law suit suing for commission and the defendant’s attorney argued the following in court:

• The granting of a sole mandate to an estate agent or agency is an act linked to the alienation of property and should require the consent of both spouses
• In terms of the Matrimonial Property Act, a spouse married in community of property who is acting alone is not permitted to bind the joint estate to any contract, including one that sells or alienates immovable property which is part of the joint estate
• Because the gentleman’s wife did not sign the sole mandate agreement, this agreement was not legally enforceable

Marriage in Community of Property - Types of Spousal Consent

To make a decision, the judge considered that the defendant’s attorney relied on the section of the Matrimonial Property Act that prohibits spouses from acting alone. Consequently, the couple married in community of property lost their property rights.

Furthermore, the judge noted that the terms of the sole mandate only granted personal rights on the spouses. In other words, their right to compel performance and receive payment for the sale.

As a result, the judge made a clear distinction between the estate agent’s sole mandate and the deed of sale that could have resulted and, therefore, found that the mandate was valid and enforceable. Rawson Properties were, therefore, entitled to their commission.

Van Deventer & Van Deventer Incorporated – Property Attorneys South Africa

When married in community of property, spouses must understand that they are not permitted to act independently with regards to their joint estate.

Marriage in community of property means that both spouses are required to provide consent when selling their property.

If you would like more information regarding a sole mandate agreement and marriage in community of property, please contact our attorneys.