PROPERTY SELLERS GENERAL INFORMATION - WHAT TO PREPARE FOR
Don't be caught off-guard, and be aware of legal requirements and potential problems. Here is some useful information, in no particular order, about some of the most important aspects to consider when selling your property.
Engage a Property Professional. After much deliberation, you've finally decided to put your house on the market. It's a big decision and no doubt, not one you've come to lightly. There are a number of things to keep in mind when engaging a real estate agent at this important juncture, therefore, you should engage the services of a fully qualified property professional who is in possession of a valid Fidelity Fund Certificate, as required by The Property Practitioners Act, and EAAB (Estate Agency Affairs Board) “It is important to use a registered estate agent as this protects consumers in case of loss of monies deposited to an estate agent's trust account. By using a registered and licensed estate agent one is able to claim against the Estate Agency Fidelity Fund which is intended to reimburse persons who in certain circumstances who have suffered losses due to the theft of trust monies by estate agents”. You may want to make sure that the estate agent of your choice is in possession of a Fidelity Fund Certificate, or you can simply contact the EAAB to check if they are registered and operating legally.
The listing. Listing your home at the proper market value is critical to selling your home within a reasonable time frame. Be cautious of making decisions based on valuations online, and instead use the property professional's knowledge of the local area as a resource
Cancel Your Bond: If you are selling your home and have an existing bond on your property, you are required to give your bank/bond institution 90 days' written notice in advance. This notice represents the intent to settle, and the bond will only be canceled after a conveyance requests the final figures from the bank/institution. As part of the National Credit Act, banks and bond originators are allowed to levy a penalty fee if you cancel your bond before the end of the agreed-upon loan period. Worth noting is that cancellation penalties are waived/not applicable in instances where (1) the property is old within a deceased estate, (2) if the property has been sequestrated (3) if another property is purchased and a new bond is taken out with the same bank. Bond cancellation fees depend on the bond amount and vary from institution to institution.
Building Plans. Make sure that your building plans are updated with all improvements/alterations made on the property, and met by council requirements. An issue with building plans that are not approved can cause massive delays in the transfer process. To avoid unnecessary surprises, the seller must ensure that their plans are in good order before placing a home on the market. It must be remembered that the municipalities can demand that illegal building of any kind be demolished.
Material defects. Repair any defects that you are aware of prior to a buyer purchasing the home. Determine these potential fixes before listing your property instead of during the negotiation process.
Water Compliant. Ensure that there are no leaks. The best way to check this is to turn off the water supply to the property and check if the meter is still ticking over. If it does, then there is most probably a leak somewhere that needs attention. Also, make sure that pool wastewater and stormwater does not go into the sewerage system. If there is a roof leak, get it repaired with a guarantee. Make sure that the guarantee is property completed, i.e. to the house and not the person owning the house.
General Certificates. Any plumber or electrician, who has worked on the house in getting it ready for sale, should give the seller a certificate that his work complies with regulations and the seller should try and get a guarantee for this work if possible.
Rates and Taxes Clearance Certificate. The Rates and Taxes Clearance Certificate from the local authority confirms that the property's rates and taxes are not in arrears and its the seller's responsibility to pay the bill for the clearance certificate upfront. A similar process applies to homeowners in sectional title schemes or gated estates, where the home owner's associated or body corporate can ask sellers to pay for their levies a few months in advance to ensure that the costs are covered until the home transfer takes place. Your most recent Rates and Taxes account
Electrical Clearance Certificate. In accordance with current South African legislation, an ECOC is only valid d for a period of two years. If not, a new inspection and certification are required. This can be done by enlisting the services of a certified electrition and can cost anywhere from R500 to 1500 (or more), depending on the size of the property as well as the call-out fee payable. In the event of any electrical faults, then bear in mind that the costs can increase, also depending on the work that requires the home to be fully compliant.
Electrical Fence System Compliance Certificate (where applicable): An Electrical Fence System Compliance Certificate (ECC) is a requirement if the homeowner has installed electrical fencing as a security measure on his or her property. This certificate must be valid and in possession of the homeowner at all times and must be renewed every year or two years, or when any alterations or changes are made to the electrical installation/system. According to the SAEFIA, (SA Electric Fence Installers Association) only their accredited contractors may legally erect, repair, and certify eclectic fences.
Beetle Certificate (where applicable): An inspection must be done after the sale unless the sale agreement stipulates it would be valid for a period before the date of sale. Usually, the beetle certificate is required only in respect of two types of borer beetles that have found their way to South Africa shores through imported timber. In certain cases, a beetle-free certificate will be required before the bank will grant finance to the buyer.
Gas Certificate of Compliance (where applicable). This certificate is required where there is a gas installation on the property or where gas has been installed to supplement their electricity usage - to be issued before occupation or transfer, whichever is the earlier. A certificate of Conformity is required which indicates that the installation has been completed by a qualified technician.
Plumbing Certificate of Compliance ((C.O.C)- Plumbing Certificates of Compliance are issued by licensed plumbers to certify that plumbing installations comply with all regulatory installation requirements.
Levies. Get your levies up to date. (1) Your latest Levy account in the complex. (2) The contact details of the managing agent/ Body Corporate/ Home Owners Association. (3) Information of any “Exclusive Use Areas” which are tied to your sectional title unit (4) Aso check to see if a right to extend has been reserved in favour of the developer, as the purchaser must be made aware and confirm that he/she wants to remain bound to the agreement. (5) Is there a special levy payable? Note that this levy is payable by the Seller if raised before transfer, unless sale agree stipulates otherwise.
The Sellers Legal Obligations to disclose faults :
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.
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.
In 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, a wall crack, rotten woodwork, or a broken cupboard.
Latent defect. 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, 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.
The most important thing is to disclose fully to the buyer and the agent if there is something amiss so that problems can be rectified and these must be listed in the sales agreement or the condition report so that a full disclosure is attached to the offer to purchase.
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:
Have you given notice to the bond-holder to cancel the bond?
If the property is unbonded, do you have an original copy of the title deed ready? What restrictive title conditions apply ? Have this info ready for the purchaser.
Upon Offer to Purchase and for the purpose of FICA, you will be required to provide your ID and proof of residence, less than 3 months old, and proof of residency by providing documents such as recent utility bills such as rates or telephone accounts that are in your name and addressed to your property.
If you are married by foreign law, then you'll need to provide your spouse's domicile at the time of the marriage.
Has your marital status changed since taking ownership? , Example (divorced, widowed, or now married)?
Have you been provisionally or finally sequestrated or liquidated?
Are you a non-resident for tax purposes? Possible withholding tax scenario where purchase price over R2 million. Best to speak to an accountant. This applies to Sellers as individuals or entities.
Is a special levy payable (if sectional title)? Note: it is payable by the Seller if raised before the transfer, unless sale agreement stipulates otherwise.
Are your rates and taxes fully paid and up-to-date?
Are you a non-resident for tax purposes? Possible withholding tax scenario where purchase price over R2 million. Applies to Sellers as individuals or entities.
Are you a Vat Vendor, if so is it a vatable sale?
Are your income taxes up to date?
Are you selling as a Company or Close Corporation? (1) Is it still on the register of companies and not deregistered? (2) Is the signatory authorized to sell or buy? Is there a resolution in place?
If are selling 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.
If sectional title unit, check if a right to extend has been reserved in favour of the developer. If so, the Purchaser must be made aware and confirm that he/she wants to remain bound to the agreement.
Do you currently have a tenant on your property? What are the lease conditions - is the tenant staying or going. Discuss with the buyer. Deal with it in the sale agreement at the occupation clause.
What is your property's current zoning status? This information must be provided for the purchaser.
There's a lot more to it, of course, but this is a great place to start!