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Sectional title corner – Can I give back my dud home?

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Q

Hi there , I’m desperately in need of advice. Two months ago I bought a property, a town house in a sectional title complex. At the time of sale I enquired thoroughly with both the seller and the estate agent involved on whether there were any material defects on the house and whether there were any outstanding levies that the seller had to settle before the transaction was finalised.

They both assured me that there were no defects and that the seller had paid 100% of the once off levy for renovations and had no arrears. I subsequently asked that I be included in body corporate meetings and that they give a receipt or some sort of proof that there will be no additional levy costs accruing to me by the time I owned the property, but these were never furnished to me. I additionally asked for the body corporate’s annual financial statements which I never received as either.

Upon moving into the place I discovered a litany of material faults which were difficult to notice during the viewings that I had prior to the purchase. These include: A faulty pipe system which causes a foul smell from the toilet, a broken garage door, broken butler doors etc. In addition to this I found out the seller was around R13,000 in arrears in levy payments (which the body corporate expected me to settle).

The complex has one electricity bill that is divided equally amongst residents, there was a body corporate meeting shortly after the transaction was complete where the seller was in attendance – I was never informed of any of the above despite my requests.

In view of the above what steps am I able to take in order to rectify the situation, getting the seller to fix the faults and settle the arrears. What kind of financial reprieve can I get for the communal electricity bill which is unfair as I live by myself and do not consume much electricity relative to my neighbours, and also considering the fact that I was never informed of this agreement?

Bearing in mind that I took a home loan to purchase the property; do I have grounds to return the property to the seller, recoup all the money I’ve spent on the property and transfer etc. and the loan from the bank? I look forward to your response. Thank you – Letshela

A

Hi Letshela, There are three issues, which will be dealt with separately below.

#1 Sectional title levies & special levies

Section 3 of the Sectional Title Schemes Management Act (STSMA) empowers body corporates to charge levies in order to cover the complex’s day to day operating costs. The owner of every unit will be liable for the payment of this levy. Section 15 of the Sectional Titles Act provides that a sectional title unit cannot be transferred to a new owner unless the body corporate has certified that all levies due have been paid up to date.

As such, the R 13,000 arrears levies cannot be for the new owner’s account as this amount would have had to be paid up to date before registration took place.

Section 3 of the STSMA further provides that special levies can also be charged by the body corporate, by the passing of a special resolution. The person who was the owner at the time the resolution was passed, will be liable for the payment of this special levy. The new owner  will only become liable for the pro rata amount of the special levy still outstanding as on day of registration, if the seller had not settled the amount in full.

 #2 “Material faults”

There are two types of defects relating to immovable property in South African law. The first is patent defects which are any defects not hidden and should be easily discoverable upon a reasonable inspection by the purchaser.  Unfortunately both the broken doors would be patent defects that should have been discovered by the purchaser upon inspection of the property. The seller is not obliged to repair any patent defects.

The second is latent defects which are defects that are hidden and cannot be seen by the naked eye.

A “voetstoots” clause will be included in most contracts for the purchase of immovable property these days. Such a clause provides some protection to the seller for patent defects. The seller cannot rely on the voetstoots clause where there is a defect that he was aware of and intentionally did not disclose to the purchaser.

The faulty pipe system might be such a latent defect. The burden falls on the purchaser, however, to prove that the seller was aware of the defect and that he intentionally withheld such information from the purchaser.

If the faulty pipes fall under the structural items the body corporate maintain you can approach the managing agent to see to the repair thereof.

#3 Bulk electricity bill

Unfortunately there is no legislation that dictates that there must be separate meters. Management rule 29 (3) of the standard rules to the STSMA states that the body corporate must, if so directed by a resolution of the members, install and maintain separate meters. This resolution will have to be taken at a meeting of members. The absence or presence of meters is something that must be established by the purchaser before signing the deed of sale. The new owner will be liable for the account as of date of registration.

Unfortunately there is no way to “give back” the property.


Got a pressing question? Email mariette@hometimes.co.za and we will be sure to assist you


Who is Sonja du Toit

Sonja du Toit, director at MC van der Berg Incorporated.

Sonja du Toit, director at MC van der Berg Incorporated.

Sonja du Toit is a director at MC van der Berg Incorporated

ungerermariette@gmail.com

Mariette Steynberg is a qualified economist with a post-graduate diploma in financial planning. She has enjoyed working on holistic financial plans for clients in various stages of life, as well as a development economist assessing the socioeconomic impacts of new developments. When she is not working, Mariette enjoys parenting her quirky, delightful toddler girl. Cloth diapering, Eskimo kisses and the importance of reading to your child are all causes close to her heart. Mariette is passionate about financial education and hopes to use the experience she has gained to share knowledge with HomeTimes’ readership. Her goal is to provide information that is implementable by everyone.

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