Property

“I never knew of a morning in Africa when I woke up that I was not happy.” (Ernest Hemingway)

 Are you a visitor dreaming of waking up with giraffes on your lawn and wondering how to make it happen? Or a local being asked by overseas friends and relatives: “This country’s magic, how can I buy myself a property here?” We have all the answers…

First up, can you even buy as a foreigner?

The good news here is that we’re as welcoming to property buyers as we are to visitors! Foreigner or local, there are very few restrictions on buying SA property – and many reasons to do so. 

Why buy South African property? 

Whether you’re looking for a holiday home, an emigration or retirement option, or just an investment, there are a host of advantages to buying a property in South Africa:

• Affordability: South Africans have become used to the rand consistently underperforming against most other currencies. The latest “Big Mac Index”, for instance, shows the rand as 50% undervalued, making it the ninth weakest currency on the index. The stronger your home currency, the more affordable even very high-end South African properties will be for you.
• Blue skies ahead for property: For a variety of economic and political reasons, the general consensus is that 2025 should present significant growth opportunities in both the residential and commercial sectors. 
• Options, options, options: South Africa offers a wide range of properties, with popular options including coastal homes, secure complexes, luxury suburban houses, vibey city apartments, bushveld estates, and retirement communities. You’re sure to find something to meet both your preferences and your investment goals.
• Capital growth potential: Property provides a stable asset in South Africa, with great potential for capital appreciation.
• Strong legal protections for property owners: Our legal system, with an effective land registration process at its core, provides robust property rights for both foreign investors and locals.
• Potential for rental income: Our strong tourism sector and consistent demand for rental properties, combined with the affordability aspect we touched on above, provide attractive opportunities to generate rental income.

How can you finance the purchase?

Foreign buyers can obtain mortgage bonds from South African banks, typically financing up to 50% of the property’s purchase price, with the balance funded through foreign currency brought into the country. Some banks are more flexible than others in this regard, with non-residents who live and work here qualifying for up to 75% loans (possibly even more if motivated) with some lenders. 

You must transfer the monies from abroad via a bank or other authorised dealer. To simplify the process of repatriating funds when you eventually sell the property, ensure that your title deed is endorsed “Non-Resident” and keep proof of the original inflow of funds. 

Make it clear in the sale agreement that you will be importing funds from overseas – and be sure that the deadlines set for you to pay the deposit, to get bond approval, and to pay the balance of the purchase price, are all realistic. It goes without saying that you should get a local lawyer to check every aspect of the agreement carefully.

How does the registration process work?

It all begins with you making an offer, which – if accepted by the seller – becomes a deed of sale or sale agreement. This is followed by the transfer of ownership of the property to you in the local Deeds Office in a process managed by a conveyancing attorney. Count on it taking about three months – perhaps a bit less if all goes smoothly or a bit more if there are unexpected delays. 

If you won’t be here that long, you will need to sign transfer and bond documentation overseas – normally at a South African embassy/consulate or (in some countries) before a Notary Public or other authorised person. Ask the conveyancer for advice specific to your country.

Taxes and other costs to consider

Foreign buyers are subject to local taxes, including transfer duty (a government tax levied on property transactions) and other costs of transfer. A cash flow projection will ensure that you are able to pay these as they fall due.

If you sell your property at some point, Capital Gains Tax may apply to the profit you make from the sale. 

Will I still need a visa?

Owning property here does not give you any form of residency status, so you will still need a valid visa, work permit or residence permit as applicable.

Ask us for the details. We’ll help you to understand all the legal and financial requirements, and to navigate the processes involved. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“A man’s home is his castle.” (Sir Edward Coke, English common law ruling, 1604)

Of course, what we all want to hear at the end of our house-selling journey is something like this: “Congratulations! You sold for a good price, the buyer’s taken transfer and you’ve been paid the purchase price. Time to pop the bubbly🍾”.

Having your sale go this smoothly is about a lot more than just finding the right buyer at the right price. It’s also about navigating a complex legal process to ensure a smooth and timely transfer of ownership.

A critical part of this journey is choosing a conveyancer (“transferring attorney”) to handle the transfer for you. Many sellers don’t realise that this choice is theirs to make – but it is. So don’t listen to anyone who tells you otherwise!

Why do you need a conveyancer in the first place?

Conveyancers are the specially qualified attorneys who oversee all the administrative, legal and financial steps required to transfer property ownership from sellers to buyers in the Deeds Office. They ensure that everything is done correctly, that the terms of the sale agreement are complied with, and – most importantly from your point of view as seller – that you get paid.

Why does the seller get to choose?

While there’s nothing in law to stop you from agreeing otherwise, there are good reasons why you should never give up your right to choose your own attorney:

• You carry more risk, so you call the tune! As the seller, it’s your valuable asset at stake, and it’s you who is legally responsible for transferring ownership correctly and on time. So, even though it is invariably the buyer who has to pay the conveyancer’s fees and other transfer costs, it’s usually accepted that it’s you as seller who appoints the conveyancer. The idea that “he who pays the piper calls the tune” doesn’t apply here!
• You need to protect your investment: A buyer-appointed conveyancer (although obliged to act professionally towards both parties) may not be as focused on protecting your financial interests as your own attorneys will be – and that’s a risk worth avoiding.
• You should control the process: Having your own conveyancer means you have someone ensuring the sale progresses smoothly and with minimal delay. If, for example, a buyer starts hedging for more time to pay a deposit or to obtain a bond, you need someone in your corner to act quickly and firmly to protect your interests.

How should you choose and appoint the conveyancer?

When choosing a conveyancer, here are some factors to consider:

• Experience and proactivity: Experienced conveyancers can spot potential delays or issues early and take steps to resolve them. They know how to handle red tape and to meet necessary requirements promptly.
• Clear communication: You want to receive regular updates so that you always know the current status of your sale. Consistent communication can save time, reduce confusion, and give you peace of mind throughout the process.
• Attention to detail: Property transfers are legal transactions with many requirements, and even a small mistake can cause delays, disputes or losses. You want someone who will be meticulous with documentation and red-tape, ensuring compliance and accuracy.
• Strong protections against cybercrime: Email scams and cyberattacks targeting financial transactions are on the rise. Property transactions are at particular risk, so make sure your attorneys have secure systems in place to protect your information and your funds.

The formal appointment is made in the sale agreement (often initially titled “Offer to Purchase”). Pay particular attention to the clause specifying which firm of attorneys is to be appointed. As we suggest below, sign nothing until we’ve checked the document for you, together with all the other terms and conditions.

When should you bring us into the picture?

It’s never too early! Ideally call us when you first decide to sell so that we can guide you through everything from the initial steps of finding a buyer, right through to signing the sale agreement and then navigating the transfer process.

It’s particularly important that you have us review any offer to purchase you are given before you sign it. We’ll ensure that it’s legally sound and fair to you, and we’ll help you understand any unique terms or special conditions included in the sale agreement.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“Don’t wait to buy land, buy land and wait.” (Will Rogers)

Summer’s a great time to look for property. With the year winding down and the holiday season upon us, many sellers who’ve been holding back are now putting their properties back onto the market, so expect to see some great new buys out there.

But that’s not the only reason…

Blue skies ahead?

The recent interest rate cut, which hopefully heralds more cuts to come, will not only make bond repayments more affordable, but it should also help stimulate our economy generally. If these positive trends hold, the resultant uptick in economic activity, with reduced pressure on consumers and higher earnings for businesses and individuals, should increase demand for property. And that, of course, would see prices move into an upward phase.

So, if you have any thoughts at all of buying a new home or investment property, now could be the perfect time to do it. If you wait too long, prices could really jump.

It is of course essential to go into the process well-prepared. We’re talking about one of your most important long-term investments, after all. So, here’s our checklist.

Your buyer’s checklist

Every buyer and every buying situation will be different, so do bear in mind that this list is just a rough guide to some of the more important factors to consider when looking for a property and/or making an offer.

1.  Location is key

When it comes to real estate, location is one of the most critical factors. You can change a lot about a property, but you can’t change its location. Consider the following:

• Work and schools: Is the property close enough to your place of work and your children’s schools?
• Local amenities: Are there shopping centres, medical facilities and other amenities nearby?
• Safety: Research the crime statistics in the area. How secure is it?
• Growth and resale potential: Historically, have prices risen in line with other areas? Are there any planned developments in the area, such as new roads, malls, or housing estates?

2. Budget wisely

Be clear about your budget before you start looking at properties. Don’t only consider the price of the property but also the additional costs involved:

• Transfer costs: These include transfer duty, conveyancing fees, and other legal costs associated with the purchase.
• Bond registration costs: If you’re taking out a home loan, you’ll need to pay bond registration fees.
• Rates and levies: Investigate the monthly rates you’ll need to pay, plus levies if the property is part of an estate or complex.
• Maintenance: Be realistic about the maintenance costs you may face after purchasing the property. The 1% rule advises setting aside at least 1% of the home’s value every year for upkeep.

Put all those costs, and other items like deposits that need to be paid, into a cash flow forecast so you aren’t caught short at any stage of the process.

3. Beware online fraud!

When it comes to paying the deposit and then, later, the costs and balance of the purchase price, be very aware of the dangers of phishing and fake emails. Don’t pay a cent to anyone without personally phoning them to confirm their banking details!

4. Conduct a thorough inspection

Before making an offer, it’s crucial to inspect the property carefully. Look for any signs of wear and tear that could lead to costly repairs down the line:

• Structural issues: Cracks in the walls can be a warning sign of bigger problems.
• Damp and leaks: Check for signs of damp, especially in bathrooms and kitchens.
• Electrical, plumbing and gas: Ensure that the wiring, gas and plumbing systems are in good working order.

Consider getting a professional inspection done to avoid surprises after the purchase. Pay close attention to the “mandatory disclosure form” that the seller must give you – it should list all known defects, boundary line disputes, building plan issues and the like. Also have a close look at all the compliance certificates that the seller is obliged to obtain – electrical, beetle, gas (if applicable), electric fence (if applicable) and water installation (Cape Town only).

5. Who’s the buyer?

Consider also who is going to be the buyer? You? Your spouse or life partner? Both of you? A trust? Another entity?

6. Buying into a complex?

If you’re buying into a complex, have you checked what rules and regulations you’ll be bound by? What levies you will pay, what special levies may be on the horizon, and whether the scheme’s finances are sound?

7. Beware nasty surprises…

Make sure there are no nasty surprises lurking in the shadows. Like servitudes or restrictions in the title deed, or undisclosed tenants or unlawful occupants on the property.

If you plan to extend or subdivide the property, or to use it for anything other than residential purposes, check both the local zoning regulations and the title deeds for restrictions.

And if that beautiful sea or mountain view is important to you, what will happen if the neighbours suddenly decide to go double or triple storey? Does the zoning allow that? Is it a realistic risk? What about other risks like a busy Airbnb or home business opening up next door?

Ask for a copy of the occupancy certificate and of building plans, and check with the local municipality that all structures are legal and built as per approved plans. Otherwise, your friendly local authority might suddenly be knocking on your door with a not-so-friendly demolition order – as happened in a recent case in the Pietermaritzburg area.

8. Understand the terms of the offer

When you’re ready to make an offer, ensure you understand the terms of the agreement. Pay close attention to:

• Suspensive conditions: These are conditions that must be met before the sale goes through, such as securing a home loan. Check the wording carefully, the “bond clause” in particular is often a source of confusion and dispute.
• Occupational rent: If the seller remains in the property after the sale, you may be entitled to receive occupational rent until you take possession. If, on the other hand, you take possession prior to transfer, you’ll probably have to pay occupational rent to the seller.
• Deposit: Know how much deposit is required and when it must be paid.

9. Get professional help

Since buying property is one of the biggest financial decisions you’ll make, it’s essential to have experienced professionals guiding you through the process – from finding the right property to ensuring all the paperwork is in order.

The bottom line

There is a myriad of important factors at play, and you only get one shot at getting this right. So, before you agree to or sign anything, contact us. Let us help make your property purchase stress-free and rewarding!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

“A bad neighbour is a misfortune, as much as a good one is a great blessing.” (Hesiod, 700 BCE)

It seems that every community has at least one nightmare neighbour who delights in objecting to everything, fighting with residents and management at every turn, and becoming abusive and aggressive when they don’t get their way.

What can you do to protect yourself and your family if you live in a residential complex and come under attack from such a neighbour?

Of course, first prize will always be to prevent a long and bitter feud from developing in the first place. But if you’ve tried the “let’s chat about this over a cup of coffee” approach without success, what then?

The case of the abusive neighbour and the protection order

Two residents of a complex ended up in the High Court after a magistrates’ court had issued an interim protection order restraining one resident (a man) from having any contact with another resident (a woman). This after he’d subjected her to verbal and physical abuse, threats, and harassment.

The Court’s judgment doesn’t say where these warring neighbours live. And it provides scant details of their conflict, barring that the victim ended up being physically injured. While these details would have been fascinating, the decision’s importance lies in the Court’s confirmation that our laws do provide complex dwellers with two, and in some cases three, options for protection.

Let’s investigate…

1. The Community Schemes Ombud Service
   
   The CSOS (Community Schemes Ombud Service) has wide powers to arbitrate in disputes concerning complexes and other community schemes. Included in those powers, in respect of “behavioural issues”, is the power to order “that a particular behaviour or default constitutes a nuisance” and requiring “the relevant person to act, or refrain from acting, in a specified way.”

   That’s great in theory but unfortunately the CSOS process is not always as quickly accessible as it should be. So, it’s good news that the High Court in this particular case allowed the victim to pursue a more immediate and direct route to justice using Option 2.

   This is an important outcome, because the golden rule has always been that you are obliged to approach the Ombud Service first in any case where it has jurisdiction. If you don’t, and you decide to go straight to court, you risk being thrown out of court for jumping the gun. But there are exceptions to that rule…

2. The Protection from Harassment Act
   
   The PHA (Protection from Harassment Act) gives you and your family a straightforward and affordable solution, allowing you to apply for a protection order from your local magistrates’ court to force the harasser to stop their unlawful behaviour immediately. The Act is strong in its enforcement, with violators facing arrest and fines or imprisonment of up to five years.

   “Harassment” is defined widely in the PHA as covering any conduct that causes or threatens harm (mental, psychological, physical, or economic) and extending to stalking, cyber-stalking, sexual harassment and physical or electronic communication.

   As this Court put it, “The mischief which the legislature intends to eliminate … is the prevalent violent behaviour in our society and in particular gender-based violence”. The Court certainly considered it relevant that the complainant in this matter is a woman, and her harasser a man.

3. The Domestic Violence Act
   
   If harasser and victim are in a “domestic relationship”, there is a third option that was not mentioned in the judgment as it did not apply in this instance: the protections of the DVA (Domestic Violence Act). These protections are again quick, accessible, and effective, and the definitions of both “domestic relationship” and “domestic violence” are wide.

When are neighbours in a complex limited to Option 1? The High Court has spoken

Now for the crunch. This dispute ended up in the High Court because the magistrate reasoned that the application was prematurely before his court. He said the application should have gone first to the CSOS because the conduct complained of was a “nuisance” which gave the CSOS power to adjudicate the matter.

Not so, held the High Court on appeal. Nothing prevented the magistrate from hearing an application based on the PHA, and the victim had been free to choose either option. In reaching this decision the Court commented that “… the disputes to be dealt with under this [CSOS] Act, are those which concern the well-being of a community scheme as opposed to individuals’ dispute (sic)” – an indication perhaps that our courts will allow a direct approach to a court where “harassment” (as defined) impacts on you personally as an individual rather than solely as a complex resident.

The upshot

It’s back to the magistrates’ court for the duelling neighbours. The magistrate, after hearing both parties and any further evidence, will either make the protection order final, or discharge it.

So, which remedy should you choose?

If your neighbour’s conduct amounts to personal “harassment” or “domestic violence” as well as “nuisance”, you might well have a choice of remedies and should choose whichever is more likely to give you and your family the quickest and most effective protection. If, however, your neighbour’s conduct does not amount to either personal harassment or domestic violence, a first approach to the CSOS will probably be advised as the safer course.

Got a troublesome neighbour? We can help.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

“This sale agreement is no more! It has ceased to be! This is an EX-sale!” (With apologies to Monty Python)

A “bond clause” – standard in most property sale agreements – typically provides that the whole sale depends on the buyer obtaining a mortgage bond by a specified date. If the deadline comes and goes without a bond being granted, the sale lapses and the buyer is entitled to get their deposit back.

Most agreements also provide that the bond clause is there for the sole benefit of the buyer, who is thus entitled to waive it, i.e. to tell the seller “I no longer need a bond and I’ll pay the purchase price in cash so the sale can proceed.”

There’s both risk and reward in that

The rewards in such a situation are obvious – both buyer and seller benefit from the sale going through.

But there’s also a risk factor if the “waiver” is open to doubt, as a recent SCA (Supreme Court of Appeal) fight illustrates.

“The whole sale agreement has lapsed, I want my R1m deposit back”

Just before the Covid-19 pandemic lockdown struck and disrupted everything (with a Deeds Office closure to top it all), the buyer bought a house for his daughter and her family for R4.95m. He paid a R1m deposit into a trust account and undertook to pay the balance on transfer. The sale agreement included a standard bond clause, worded along the lines set out above.

The buyer applied for a bond and was eventually granted one. But, critically, this only happened after expiry of the deadline set out in the bond clause. Meanwhile – and here we come to the nub of this dispute – a conveyancing secretary wrote an email advising that “…we have spoken to the purchaser and the purchaser advised that he will make payment of the full purchase price… He will be buying the property cash.” That “waiver email”, the seller would later argue, was the buyer waiving the benefit of the bond clause through the agency of the conveyancer.

• Many delays and emails later – caused largely it seems by the lockdown – the daughter and her family were given early occupation as they were keen to get going with repairs, alterations and landscaping. That happy process all came to a screeching halt when an architect discovered that there were no plans for parts of the building and that it was thus illegal. The daughter returned the keys, and her father demanded a refund of his deposit.
• The seller refused, claiming that the buyer had both waived his right to rely on the bond clause and repudiated (renounced) the sale. His deposit would therefore be retained to cover the seller’s damages claim against him.
• The buyer retorted that he had never waived his rights under the bond clause, and that the whole sale was null and void from midnight on the date of expiry of the bond clause deadline. That, argued the buyer, entitled him to the return of his R1m deposit.

Waiver and the law

Battle lines drawn, the first round went to the buyer: the High Court agreed that the sale had lapsed and ordered that he be repaid his R1m.

Round two was no better for the seller. The SCA, refusing his application to appeal against the repayment order, held that there is a factual presumption against waiver in our law. The onus was therefore on the seller to prove that the buyer had waived his rights to the bond clause. He needed to provide “clear proof” of a “valid and unequivocal waiver” showing that “[the buyer] was aware of those rights, intended to waive them and did do so”. The Court said he had failed to prove this.

Moreover, the agreement required (as is standard) “that any waiver of any right arising from or in connection to the agreement be in writing and signed by the party to the agreement.” No proof of that here, held the Court. And when it came to the seller’s suggestion that the conveyancer had acted as the buyer’s agent in writing the disputed “waiver” email, the Court held that the seller had failed to prove that the conveyancer “was duly authorised to waive those rights, of which [the buyer] was fully aware, and that [the conveyancer] knew all the relevant facts, was aware of those rights and intended to waive them.”

The end result: There was no need to argue over the lack of building plans. The sale died when the bond clause deadline expired. It was, as Monty Python might have put it, deceased, expired, and bereft of life. The buyer gets his R1m back.

Remember: A lot is at stake in property sales, and it’s easy to put a foot wrong. Speak to us before you sign anything!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

“Good fences make good neighbours.” (Robert Frost)

When you buy into a community scheme (such as a security estate, complex or apartment block) you automatically become a member of its management body: either a Homeowners Association (“HOA”) if your property is full-title or freehold, or a Body Corporate if your property is part of a sectional title development.

You are then automatically bound by the rules and regulations formulated by your management body, so make sure you understand them fully. They are there to promote everyone’s safety, quality of living and property values, and you have no choice but to abide by them. Of course, as a member, you also have a say in the formulation and amendment of the rules. But once they’re in place you must comply with them.

However, as the outcome of a recent High Court dispute confirms, you are entitled to insist that they be applied consistently and reasonably.

“Remove that garage door, it’s not approved!”

The case saw a homeowner in Randburg take the estate’s HOA to court over their objections to his shiny garage door:

• The HOA’s Main Objectives being to “…to carry on, to promote, advance, and to protect communal interests, safety and welfare of the Members of the Association, including, but not limited to, by maintaining the open spaces, controlling the aesthetic appearance of land, including landscaping, buildings and improvements”, its rules and regulations (specifically one of its Architectural Rules) required homeowners to get approval before installing garage doors with any finish other than timber.
• Imagine the shock, then, when this homeowner went ahead and installed a garage door with a “mirror exterior finish” without asking for permission. The HOA rejected his subsequent application for approval and required him to remove the door.
• The homeowner refused, and the dispute was referred to a CSOS (Community Services Ombud Service) arbitrator, who upheld the HOA’s removal order. But the homeowner, clearly enamoured by his flashy door, wouldn’t take no for an answer.
• On appeal, the High Court reversed the CSOS decision because, as evidenced by photographs, the HOA had previously allowed other garage doors with mirrors or glass in their construction. The HOA had raised nothing to contradict that apparent inconsistency, which, according to the Court, “should have led [the arbitrator] to the conclusion that the Homeowners Association acted inconsistently, and thus unreasonably, by ordering removal of the garage door.”

The upshot?

The homeowner gets to keep his mirrored garage door, and HOAs and Bodies Corporate learn a sharp lesson – apply your rules and regulations fairly, reasonably and consistently.

Remember that we are here to assist if you are unsure of anything!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

“A verbal contract isn’t worth the paper it’s written on” (Samuel Goldwyn)

Perhaps you are a seller marketing your property through an estate agency, or a buyer asking an agent to find you one, or a landlord employing an agent to let out your property. Whatever the transaction involved, make sure that the agency mandate is in writing.

The problem is that, because we have a human tendency to hear only what we want to hear, the parties to any verbal agreement can, quite genuinely, each remember the terms of their agreement quite differently. Even worse, if one party is determined to cheat the other, it’s a lot easier to challenge a verbal agreement than a written one.

Bottom line – oral contracts invite misunderstanding, conflict and protracted litigation, and for that very reason few agents will accept a mandate without requiring your signature on a written agreement.

But not always – let’s consider a recent High Court fight over a R450,000 commission claim.

Buyer must pay R450k for a cancelled sale

• A property developer had previously employed an estate agent to source development property for it. No written mandate was ever signed.
• The agent, relying on what she said was a verbal mandate to find a further development property, introduced the developer to a property which it decided to buy. An agreement of sale, including a clause confirming that the agent was entitled to R450,000 in commission, was signed by both buyer and seller. The agent had thus fulfilled her mandate and was the effective cause of the sale, the developer being willing and able to buy the property. In the ordinary course the agent would then have been entitled to her commission on fulfillment of all suspensive conditions (“conditions precedent”).
• However, when the developer cancelled the sale, it refused to pay the agent her commission, denying firstly that any mandate had been given, and secondly arguing that in any event commission was only payable against actual transfer of the property from the seller to the buyer.
• Long story short, the Court dismissed the developer’s attempts to convince it that there was no mandate at all, or that the suspensive conditions had not been fulfilled, or that the mandate included either an implied or a “tacit” term to the effect that commission would only be payable against transfer.
• The developer was ordered to pay the agent’s commission and is left R450k (and legal costs) down, with absolutely nothing to show for it.

The lessons…

That is of course not only an expensive lesson for the developer, it’s also a clear wake-up call to anyone and everyone entering into a property deal of any sort with the involvement of an estate agent to ensure that you –

1. Sign a written, clear mandate

   Both parties could have saved themselves all the aggravation, delay and cost of litigation had they only entered into a written mandate agreement with clear, simple terms accurately recording the terms and conditions they had agreed upon.

   As we said above, most agencies insist on written mandates anyway, but make sure you aren’t the exception!

2. Specify that commission is payable against transfer

   Most sale agreements will provide that commission is earned on performance of the agent’s mandate and fulfilment of any suspensive or resolutive conditions (bond clauses and the like).

   But when is the commission actually payable to the agency? As it is normally deducted from the buyer’s deposit held in trust, both seller and buyer should check that it will not be paid out before transfer (or, in the event of a breach or cancellation of the sale, on that date). And whilst most standard mandates and sale agreements will provide exactly that, you must check because every agreement will be different. If there is a clause allowing payment of commission before transfer, don’t accept it without specific legal advice.

   From an agent’s perspective, further clauses are of course essential to protect your commission payment in the event that the sale is frustrated or doesn’t proceed – normally the agreement is that a defaulting party (buyer or seller) is liable to pay the full commission on default.

Most importantly of all, sign nothing property-related without asking us to check it over for you first!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

“[w]here a seller recklessly tells a half-truth or knows the facts but does not reveal them because he or she has not bothered to consider their significance, this may also amount to fraud” … “a willful abstention from establishing the true facts does not constitute a lack of knowledge” (Extracts from the judgment below)

Consider this all-too-common scenario: You buy your dream house and happily move in. Only then do you discover that the house has major defects, which were never disclosed to you by the seller. You demand the seller pays the repair costs but the seller refuses. So off to court you go, claiming either damages or a reduction in the purchase price.

What must you prove to win your case? Let’s consider a recent High Court decision addressing just that question.

Concealing the damp with paint and Polyfilla

• The buyer of a house only became aware of substantial damp problems in the ceilings and walls after taking transfer and when planning renovations. The damp was caused both by rising damp, and by water flowing down into the walls due to failed waterproofing.
• The sellers (a divorced couple) refused to pay for the repairs (costing just under R245k) and the buyer sued them for either damages or a reduction in the purchase price.
• Highly relevant – as we shall see below – was the fact that twice in the year of sale the ex-wife (living alone in the house and tasked with selling it after the divorce) had called in contractors to repaint and carry out “cosmetic repairs” – extensive repairs judging by the drum of paint and 24kg of Polyfilla involved.

What the buyer must prove

The matter ended up in the High Court, which considered what the buyer must prove to succeed in a claim of this nature.  –

• Defects: That there were defects in the property at the time of the sale which “affected the use and value of the property”. The buyer had no difficulty in proving that the damp problems qualified as defects for this purpose.
• Latent, not patent: That the damp was a latent defect, not “obvious or patent” to the buyer. That’s important because latent defects are defects that “would not have been visible or discoverable upon inspection by the ordinary purchaser” – so if the damp was a “patent” defect, the buyer should have picked it up. The buyer in this case was able to convince the Court that the damp was not discoverable by her at the time of sale because all traces of it had been concealed by the remedial work referred to above.
• Fraud: That the damp as a latent defect was not covered by the voetstoots clause, a standard clause in deeds of sale which specifies that the property is sold “as is” and without any warranty. The effect of such a clause is that the buyer agrees to carry the risk of latent defects, but only if there was no fraud on the part of the seller. So the buyer had to establish fraud, by proving two things –
  • That the sellers were aware of the damp and its consequences.
  • That they deliberately concealed it with the intention to defraud.

Proving fraud – how relevant is the “property condition report”?

Fraud, said the Court, “is not lightly imputed [but] it may nevertheless be inferred when such inference is supported by the objective facts revealed by the evidence.” The following factors were central to the Court’s conclusion that both sellers had acted with fraudulent intent –

• The sellers’ protestations that either they were unaware of the damp problems or had not intended to fraudulently conceal them found no favour with the Court on the facts – which included the extent and nature of the re-painting carried out.
• The ex-wife’s claim to have been ignorant of the damp issues, despite the extent and nature of the “cosmetic repairs” she carried out, was rejected. As the Court put it: “At best for her, she remained willfully ignorant of the underlying cause of the issues in the paintwork; she could not honestly have believed that the core issue had been remediated.”
• The ex-husband for his part admitted that he had known of damp issues in two rooms because of bubbling paint and a smell of damp, with the Court concluding that: “He appears to have taken no steps to ascertain how extensive or serious those problems were – but a willful abstention from establishing the true facts does not constitute a lack of knowledge.”
• Perhaps most damningly of all, both the ex-husband and the ex-wife had signed the mandatory Property Condition Report (“defects disclosure form”), in which they specifically stated that there were no latent defects in the property, including “dampness in walls/ floors”.

The Court held that the buyer had proved fraud by both sellers and confirmed her award of R244,855 in damages for the repairs.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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