When Your Buyer Can’t Get Finance, Might a Kustingsbrief Save the Sale?

“A kustingbrief … has long been recognised as a superior front-ranking form of security.” (Extract from judgment referred to in the article)

You accept a great offer on your property, the sale agreement is signed and the buyer pays the deposit. You put the champagne on ice. But before you can pop it open, the buyer’s bond applications are rejected by every bank. Your sale is about to die. Is there anything you can do to rescue it?

The “kissing letter” option

A kustingsbrief (literally “kissing letter”) has its origins in old Dutch law and refers to a type of mortgage bond – a “purchase money mortgage bond” - registered in favour of a person or institution to secure the balance of the purchase price (or the full purchase price if no deposit is paid).

Many “bank bonds” and other third-party loans will fall into that definition, but in this article we’ll use the term only to refer to a bond in favour of the seller. For example, a buyer pays a R400,000 deposit on a R4m sale. The buyer can’t get a bank loan so the seller agrees to let the buyer take transfer in return for a bond in favour of the seller for the R3.6m purchase price balance. The buyer then takes transfer and pays off the bond in the same way that a bank bond would work, except of course that all payments go to the seller.

Have a look at the advantages and disadvantages of the concept below before considering this option.

Advantages

• The sale is rescued to everyone’s benefit.
  
  
• Interest on the monies due and the terms of repayment are fully negotiable (but note the warning to sellers under “Disadvantages” below).
  
  
• Because the bond must be registered in the Deeds Office simultaneously with transfer of the property, it gives the seller very strong security in the event of non-payment by the buyer. It is by definition a “first bond” so ranks ahead of any further bonds registered down the line.
  
  
• Even if the buyer’s estate is sequestrated within six months of the bond being lodged in the Deeds Office, this security remains strong. As our courts have put it: “A kustingbrief … has long been recognised as a superior front-ranking form of security.”

Disadvantages

• Assuming the bond carries interest, the seller would probably be wise to register as a credit provider. There are exceptions and grey areas here - for example, lending money to a dependant family member might be exempt, and there are limited exceptions applying to “juristic person” consumers. But if the seller should have registered as a credit provider and failed to do so, the whole deal is invalid and unenforceable, and that will leave the seller unable to claim a cent and in fact having to repay any instalments already paid.
  
  
• The seller must be in a financial position to wait for full payment. And whilst being paid in monthly instalments for say 15 or 20 years will be perfect for some sellers, most are more likely to need full payment against transfer.
  
  
• In practice, other than perhaps where close family is involved, the seller is likely to need a lot of convincing about the buyer’s creditworthiness if no bank will grant a bond. Most sellers will be reluctant to go this route without some form of comfort such as a larger-than-normal deposit, third party suretyships or some other avenue of recovery should the buyer default on instalments down the line.
  
  
• The seller will have to administer the process of collecting instalments and so on, for as many years as the agreed term of the bond.

All that said, in the right circumstances this option could be the saving of a great sale. It goes without saying that full advice specific to the circumstances is absolutely essential here.