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How to buy a home – what about the defects?

How much do you really know about the home buying process? Sure, house hunting is fun and playing with online calculators does give you an idea of how much house you can afford. But what should you know before you even sign an offer to purchase?

Our friends at MC van der Berg Attorneys have kindly allowed us to republish their MC Purchasers Guide to help educate new and seasoned buyers on the legal ins and outs of home buying.

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6 Property inspections and house fittings

Different defectsVoetstoots resize

Patent defects to the property are those defects which can be seen with the naked eye or can be ascertained after a reasonable inspection of the property has been made. This includes the zoning and approved plans of the property.

There remains a legal obligation on the purchaser to conduct a thorough inspection of the property to ascertain which patent defects to the property exist as on date of signature of the agreement. In the event that the purchaser neglects to attend to the necessary inspections, it is presumed that the purchaser is aware of all the patent defects and that he has purchased the property as such.

Neither the seller nor the agent therefore has an obligation to inspect the property on behalf of the purchaser or to disclose any patent defects.

Latent defects to the property are those defects which cannot be seen with the naked eye or cannot be ascertained after a reasonable inspection of the property has been made. If the property is offered and sold in the condition as it stands (voetstoots) it means that the seller does not guarantee the condition of the property pertaining to any latent defects. You as the purchaser will therefore bear the costs of the latent defects, except if you can prove that the seller had prior knowledge thereof and fraudulently kept silent before conclusion of the agreement.

In the spirit of the Consumer Protection Act (CPA) most agencies expect sellers to complete a property report. You should go through this document carefully and make sure that you understand the scope of it. Prospective buyers are often under the false impression that the provisions of the CPA, together with the property report, protect them against any defects.

You should obtain the property report at the first viewing of the property and go through it at an early stage to ascertain its impact. You are also entitled to appoint a house inspector or professional person at your own expense to carry out the inspections on your behalf.

Sectional title and homeowners association rule book

If the property that you want to purchase is regulated by a sectional title body corporate and/or a homeowners association you are obliged to become a member of it and you will be subject to the rules of this entity. It may be wise to obtain the rules beforehand and go through them.

Know your fixtures from your fittingstaps fixtures

It is important to be able to distinguish between the terms fixtures and fittings. Fixtures form part of the property and may not be removed when the seller moves and are therefore sold with the property. Fittings however are regarded as items that do not form part of the property and that the seller can take with him when he moves.

It is not always clear in which category a certain item falls and purchasers and sellers often disagree on this issue.

There are a few broad legal principles for determining whether a particular item is a fixture or a fitting. These legal principles cannot cater for each and every unique situation and it is therefore advisable to distinguish between the two in the deed of sale.

We recommend that you insert an extensive list in the deed of sale (if provision is made for it) or add an addendum to the purchase agreement in which you specify the list of items you deem to be fixtures and therefore part of the transaction.

Research the suburb before you buy #SuburbIntelligence

Some estate agents’ pro forma purchase agreements already contain a comprehensive list of both fixtures and fittings. This list is only a broad attempt to assist the parties and is therefore not a custom-made list for your particular transaction.

Next time: Tax; the various compliance certificates; and understanding occupational rent  

¶ Contact MC van der Berg Attorneys on +27 (0)12 660 6000, email info@mcvdberg.co.za or visit their website



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