Before putting in an Offer to Purchase, make sure that you don't get caught up in the excitement without doing adequate research on the property first.  Don't rush the process.  Assessment of the property should include an inspection of the property's location,  building, zoning rights, and infrastructure, etc.  Being a well-informed buyer will enable you to make an objective decision about your next property purchase.  

Potential Defects.  The Seller has a legal obligation to inform both the real estate agent and the buyer of any such defects on the property, but it is always recommended that for extra protection a buyer should undertake a proper inspection himself or herself in the presence of the appointed estate agent.  If you are not entirely happy with your own home inspection, then its also recommended to appoint a home inspection company to do a comprehensive check on the property before you put in an offer.

This is where the "Voetstoots" clause comes in.  The word "voetstoots" is an Afrikaans term generally used to effectively describe buying something "as-is"- just as it stands, in whatever condition it is, warts and all.   A voetstoots clause provides important protection to sellers of second-hand houses, which have deteriorated through normal wear and tear, or which have become defective to some extent through constant use, or through natural decay. The basic purpose of the voetstoots clause is to shield the seller from any legal action arising from the buyer discovering defects he was not aware of when purchasing the property.

n order to understand the extent to which a voetstoots clause affects both sellers and buyers, it is necessary to understand the difference between a "patent" and a "latent" defect.

Patent defect:  This is a defect that is, or should reasonably be, easily identifiable upon inspection of the property by the buyer.

For instance,  minor cracks in walls, rotten woodwork, a broken cupboard, leaking taps, loose gutters, and broken cupboards, etc,

Latent defect.   Latent defects are the more serious defects that arent obvious to the naked eye.   This is a defect that is not apparent after ordinary inspection by a "reasonable man".   Latent defects are defects that only an expert could be expected to discover - for example, rising damp in a house, dampness in walls, inadequate water drainage, structural weakness of the roof timbers, or an incorrectly installed geyser.   Some more examples of latent defects included damaged pipes in walls, leaking roofs (except where strain marks make the leak obvious), and defects such as dampness behind a cabinet.   The test is would not normally be seen on inspection y a "reasonable man".

VOETSTOOTS - Without guarantee or warranty; at the buyer's risk.

 

There are two exceptions that would entitle the buyer to either cancel the contract or to sue for a reduction in the selling price:

  • The seller knew of the defects and did not disclose them to the buyer.

  • The buyer could also cancel the contract on the basis of a fraudulent, or innocent, material misrepresentation - but only if it can be shown that the latent defect is so serious, that if the buyer had known of it he would not have bought it.

 

Remember that if an agreement of sale of immovable property contains a voetstoots clause, then the seller will be free of any liability for any latent or patent defects you as the buyer may discover after taking occupation of the property.   Ultimately, it's of utmost importance that you know your rights as a buyer and to make sure that you take the necessary steps to avoid the risk of making a bad investment.

Here is a list of some of the important aspects a buyer should consider before purchasing:

THE LOCATION 

 Assessment of the Location should include the following:

  • Evaluation of future plans for the area in terms of new development.

  • Crime stats for the area over the past year.

  • Private security presence in the neighborhood or residential estate.

  • Noise levels during the day and night, proximity to informal settlements.

  • Proximity to convenient amenities such as schools and medical care.

  • Building limits for neighbouring buildings that could impact on your views if applicable.

  • Future plans in neighbourhood designated for future development.

  • A CMA (Comparative Market Analysis Report) of prices of similar homes in the area from your estate agent.

THE PROPERTY

Assessment of the property should include the following:

  • Ensure that the building complies 100% with the approved plans

  • Make sure you know which areas are part of your section, which areas are for your exclusive use, and which areas are common ground for all residents.  This applies to Sectional title properties.

  • House orientation that could impact on warmth and light.

  • Structures legal and according to title deed and plan restrictions.

  • The latest Rates & Taxes/Levies invoice and amount.   

  • Check to see if the Seller is up to date with all rates & taxes/levies payments

  • Security installations

  • Title Deed restrictions that may be on the property that could hinder future plans for building and renovation.

  • Home Owners Association/Body Corporate Rules, Regulations & Architectural guidelines, and Pet Policies.  These apply to Sectional Title and Residential Estates.

  • Provision for sewerage, provision for stormwater drainage

  • Road access (extremely steep driveway, access onto a busy road, etc)

  • Closeness to neighbours – ensure you have adequate privacy

  • Additional parking, especially in Sectional Title Properties

  • Clarify what the zoning rights of the property are.

  • Bear in mind the seller will need to provide compliance certificates, such as electrical certificate, gas certificate,  as well as plumbing and beetle certificates where applicable.

THE BUILDING

Building Plans.    Make sure that building complies 100% with the approved plans before making signing and offer to purchase..  Not doing so can lead to serious legal issues. Remember that as a buyer you can include a suspension condition in the Sales agreement that puts the obligation on the seller to provide a copy of the municipal approved plans of the dwelling, within a reasonable period of time so that that you as the purchaser can compare the dwelling to the plans.   

Some of the obvious and not-so-obvious defects to look out for. Leaking taps, broken window frames,  rotten Woodward, broken cupboards, loose gutters, cracked tiles, cracks in walls, damaged cupboard doors, etc.  Structural cracks on walls, Damp and mould in walls, ceilings, kitchen cupboards, skirting boards, and window and door frames, water patching in on walls, ceilings, and inside sink cupboards and look out for damp smells. Electric faults in light bulb sockets, light switches, electrical boards, wall sockets, and light switches, etc. (Test light switches and look for plugs in every room.   Check heating and/or cooling systems.  Damage to built-in appliances, door handles, gutters, and windows, etc.  Condition of cupboards, doors, flooring, roof, fascias, and gutters. 

Record of Defects.  After making a record of defects, you can then specify in the sales agreement that they are repaired before you take occupation.   The Seller has an obligation to provide you with a list of known latent and patent defects on the property that would be recorded in the sales agreement.   The estate agent should guide you each step of the way.

Further aspects to consider,  questions to ask, and some of the information required for the legal process. 

Listed here as general information and in no particular order:

  • Be clear about you can afford

  • Be very clear with the Seller about what's included in the sale, and ensure that everything removed is documented in the sale agreement.

  • Why is the owner selling and how long has the property been on the market?

  • How old is the building and how long has the current owner lived there, and how many previous owners?

  • Is a special levy payable (if sectional title or Home Owners Association,  (HOA)?   Note: it is payable by the Seller if raised before transfer, unless the sale agreement stipulates otherwise.

  • Has any major work been done on the property?

  • Ascertain the property's current zoning status.

  • Have any of the rooms been recently painted or refurbished, and why?

  • Has any major work to the property been undertaken, if yes, have the plans been updated accordingly?

  • Are the neighbours quiet or noisy?

  • Will the sellers agree to a home inspection? If not, why?

  • Determine what's most important to have right now, e.g. location, number, bedrooms/bathrooms, do you want a home with very little or no work to do at all?

  • If quality is initially important to you check the quality of finishes in the kitchen, bathroom, tiling, fixtures, and fittings, etc.

  • Request compliance certificates from the seller electrical certificate/ gas certificate/plumbing/water certificate, which is applicable,  to show the building’s compliance with health and safety regulations.  The estate agent should guide and assist you each step of the way.

  • Check the exterior condition of the property such as the swimming and pumps, condition of decking and paving, etc.

  • Look at the potential to expand or renovate - look at the building plans first to start with.

  • What is the Seller's reason for selling the property?

  • Are there tenants currently on the property and on what terms?  Get a copy of the lease.  Deal with it in the sale agreement at the occupation clause.

  • Are you buying into an area that will appeal to future tenants? 

  • Do you see yourself living in the same town/area for the next 5-10 years? 

  • What is the potential of rental yield, and the amount of property available for rent in the area?

  • What is the minimum price the Seller is willing to accept, and what offers have so far been received

Some of the important information required for the Legal Process would include:

  • FICA for Seller and Purchaser – ID and proof of residence, less than 3 months old.

  • Marital status: if married by foreign law, ascertain what the husband’s domicile was at the time of the marriage.

  • Have you been provisionally or finally sequestrated or liquidated?

  • What restrictive title conditions apply? Get a copy of the title deed from the Seller or deeds office and acknowledge acceptance thereof. (done via the  conveyancer.)

  • If you are purchasing as a  company or close corporation:  (1) is the signatory authorized to sell or buy?  (2)  is there a resolution in place? (3) Is it still on the register of companies and not deregistered?

  • If you are purchasing as a trust, there must either be a resolution for a trustee to bind the trust, dated prior to the sale, or all trustees must sign the agreement of sale. If not, the agreement will be invalid. Get a copy of the latest Letters of Authority.

  • Remember: Purchaser cannot sign as trustee for a trust still to be formed - invalid sale.

  • If sectional title unit, as the purchaser, check to see if a right to extend has been reserved in favour of the developer, and confirm that you want to remain bound to the agreement.

  • Is your income tax up-to-date?

 

There is of course more to this process, but its a good place to start!

PROPERTY BUYERS GENERAL INFORMATION - WHAT TO LOOK OUT FOR

SCHOFIELD WILDLIFE PROPERTIES   

Office 16 - Maroela Park, 53 Koedoe Street, Hoedspruit, 1380, South Africa

Mobile:  +27 (0) 073 688 5148   Email:  bernadette@schofieldproperties.co.za

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