Is there a law governing disclosure relative to property sales?
Laws governing disclosure of defects protect buyers from misleading or fraudulent representations by, or on behalf of, the seller in respect of the immovable property they wish to purchase.
When buying and selling a home, the parties agree to a purchase price related to the condition of the property at the time of the sale. This requires disclosing to the buyer all defects, or faults, including those that are either obvious to the eye upon reasonable inspection, or those that may only become known at a later stage.
The law on defects has in the past been governed by common law and is today further governed by the Consumer Protection Act (CPA), which has the main objective to protect consumers whilst establishing certain duties for suppliers in respect of a consumer agreement.
Whilst the CPA is not applicable to an owner selling his property, it is applicable for Developers and Property Practitioners, who have a duty to ensure that all defects are declared to the purchaser.
Is the “Voetstoots Clause” still valid?
The voetstoots clause is still a valid clause in an agreement unless the seller is in the business of selling properties, but it is important to realise that the seller will not be protected if he/she was aware of the defect and did not disclose it to the purchaser. The concealment must be deliberate and with the intention to defraud. (If the seller concealed the defect in an obvious way, for example, by painting over damp)
The Fear of Property Inspections
With the fierce competition in the property sales industry and sellers wanting maximum return, it is understandable that property inspections are sometimes seen as a threat. While Property Inspections have been around in South Africa for more than 20 years, we are seeing a growing trend of buyers, sellers and even practitioners insisting on an independent inspection as part of the conditions in the offer to purchase. It is important to understand that a property inspection protects the seller, the property practitioner, and the buyer.
Requirements for a Property Inspection
A property inspector should be qualified to provide the customer with an in-depth written report after completing the inspection, including all the relevant components, date-stamped pictures, and detailed problem descriptions.
An Inspection Report leaves no room for misinformation and problems that could cause legal complications at a later stage.
Please feel free to contact us at:
Email: info@homeinspectionsa.co.za
Phone: (+27) 0861 995 049
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