The ‘continued marketing’ and ‘72-hour’ clause

By LB Vorster

The acceptance by a seller of an offer to purchase that is subject to fulfilment by the purchaser of a suspensive condition, i.e. among others, the acquisition of a mortgage bond and/or the sale of the purchaser’s existing property, within a certain time frame, effectively means that the property is taken off the market in anticipation of fulfilment by the purchaser of such condition(s).

This may happen during a time that the demand for properties is high, and taking the property off the market entirely may later be regretted if a suspensive condition is not fulfilled. A number of golden opportunities to dispose of the property to a third party may have been missed altogether.

Failure on the part of the purchaser to fulfil any one or more of the suspensive condition(s) on or before the cut-off date will simply render the agreement of sale of no further force or effect. It will also be incapable of being revived unless extended by agreement between the parties prior to the stipulated date of fulfilment. That is why, in the pre-printed ‘Offer to Purchase’ forms of most estate agencies and many Deeds of Sale, provision is made for the “continued marketing” of the seller’s property in anticipation of fulfilment by the purchaser of the suspensive condition(s).

In the event that a second, better offer is received as a result of such continued marketing, which the seller intends accepting, the latter will be entitled to give written notice to the purchaser who had made the first offer, to either fulfil the suspensive condition(s) or to waive them within 72 hours (or 3 days).

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