Buyers often assume that they are afforded some protection in terms of the Consumer Protection Act against defects, and that the seller must repair defects to a property that has been sold, prior to transfer.
The common law position has not changed and it is still a case of 'buyer beware'. Buyers would have no claim against sellers for hidden defects, for example, leaking roofs which they may only discover once they have taken occupation of the property, unless such defect was intentionally hidden by the seller.
The Consumer Protection Act only protects buyers who have bought property from a person who buys and sells property in the ordinary course of their business, such as a developer against hidden defects and then only to a limited extent, depending on the terms of the agreement.
Buyers often insist on a clause to make the agreement subject to an inspection and this means that an agreement can easily fall through at the whim of a buyer who suffers from buyers remorse.
In these circumstances, agents may want to consider a resolutive condition to the sale agreement (rather than a subjective condition) in terms of which the agreement will remain valid and binding, unless the purchaser takes steps to cancel the agreement within a limited period of time, after an inspection.
A suitable clause may be the following:
"Notwithstanding the fact that the property is sold with all defects, latent and patent, the purchaser shall have the right to, at his expense, have the property examined by a suitably qualified person of his choice to establish whether or not there are any material defects to the property. Such inspection shall be carried out within a period of 10 (ten) days of date of purchase. Should such examination reveal any material defects with which the purchaser is not satisfied, then in such event the purchaser shall be entitled to cancel the agreement by giving written notice to such effect (with a copy of the report), within the said period of 10 (ten) days, failing which this agreement shall remain in full force and effect and the purchaser shall have no claims against the seller."
This affords buyers a window of opportunity of ten days to cancel the agreement and should they not make use of this opportunity, they would have no recourse against the seller and the agreement will be conclusive.
AMC Hunter Inc.
Tel (031) 309 5483
Fax (031) 309 7063