The Bill was supposed to finally provide buyers (consumers) more protection in the secondary housing market.
However, it appears the Minister of Human Settlements and his staff and the National Assembly totally missed the point!
Here is that portion of the Bill:
Mandatory disclosure form
A property practitioner –
may not accept a mandate unless the seller or lessor of the property has provided him or her with a fully completed and signed mandatory disclosure in the prescribed form; and
must provide a copy of the completed mandatory disclosure form to a prospective purchaser or lessee who intends to make an offer for the purchase or lease of a property.
The completed mandatory disclosure form signed by all relevant parties must be attached to any agreement for the sale or lease of a property and forms an integral part of that agreement, but if such a disclosure form was not completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies of the property were disclosed to the purchaser.
A property practitioner who fails to comply with subsection (1) may be held liable by an affected consumer.
Nothing in this section prevents the Authority from taking action against a property practitioner or imposing an appropriate sanction.
Nothing in this section prevents a consumer, for his or her own account, from undertaking a private property inspection to confirm the state of the property before finalising the transaction.
This is the protection this Bill offers to buyers (consumers) who buy properties from sellers.
A new way to “protect” home buyers and enrich insurance companies is available in South Africa in the form of a “home warranty”!
The “Voetstoots Clause”
Thousands of homes are sold without any guarantee that the homes are free of defects. These homes are all older homes sold with the “voetstoots” clause in the “offer to purchase”. The Consumer Protection Act does not protect you, the buyer, in this case. Selling his home is not the seller’s normal course of business.
The seller’s disclosure is required to declare all known defects. Can you trust that document?
I would not!
You have to prove that the seller was aware of the defects and did not disclose them!
The defects could be maintenance issues or latent defects that the seller knows about, but that is hidden from view. Such defects can cost a lot of money to fix. Furthermore, the legal process is expensive and frustrating if there’s any doubt that the seller did not disclose known defects.
About the home warranty
An insurance company is offering a “home warranty” to protect you from issues and defects for a two year period. In addition, the premiums are determined on an individual basis according to the insurer. However, the cost of this home warranty apparently ranges from R12,000 for a one million Rand home to R28,000.00 for a five million Rand home!
The seller can include the cover as a feature of the sale, or the buyer may insist upon the home warranty as a condition of the sale. In both cases, payment for the warranty forms part of the offer to purchase.
There are costs like certificates of compliance, levies and rates clearances, bond cancellation fees and the estate agent’s commission on the sale that all come off the selling price. Then there are the costs the seller has of buying a new property and moving to it as well!
I can only wonder how many sellers will want to cough up such a large amount of money?
If you believe that the voetstoots clause is no longer applicable to home sales, you are mistaken. Estate agents and home sellers are using the voetstoots clause in 98% of the “offer to purchase” agreements. Furthermore, the voetstoots clause protects both the seller and the agent in case of legal ramifications for defects. The seller is not selling his home in his normal course of business. As a result, the Consumer Protection Act does not protect you!
In conclusion, just imagine what is wrong and can go wrong with the house you just bought if you don’t take the correct action!