Buyers take care before you sign your offer to purchase

Buyers, take care before you sign your offer to purchase
Article by Karien Hunter, Founder and Senior Director of AMC HUNTER INC., Conveyancers & Attorneys, Durban

Buying or selling a property is not only the biggest financial decision most people make but is also the most confusing.

Estate agents sell houses and conveyancers transfer ownership of land through the Deeds Office. Whatever improvements may have been made to the land, such as the construction of a house, is immaterial to the Deeds Office and it is not actually the estate agent or the conveyancers function to sort out any problems a buyer may have with a property he or she had purchased.

Quite simply, the estate agent has performed his function once he has found a willing and able buyer for the property, and is not usually under any obligation to the buyer to sort out any structural problems to the property.

Likewise, it is the conveyancers duty to ensure that transfer of ownership takes place as quickly as possible, in accordance with the terms and conditions of the sale agreement, and it is not really their function to resolve disputes around defects to the property.

Once an offer to purchase has been accepted by the seller, a binding agreement comes into existence which usually contains a “voetstoots” clause. This means the property has been bought ‘as is’ that is, with all its defects.

Misconceptions often arise around the voetstoots issue, to mention but a few examples:

· When the purchaser viewed the property, the servant’s quarters were locked and the purchaser subsequently put in an offer to purchase without inspecting the servant’s quarters. It turned out that there was a huge crack in the servant’s quarters. In this case, the “voetstoots” clause protects the seller and the purchaser has no claim;
· Unbeknown to the purchaser, the roof had a leak at the time of sale. Unless the purchaser can prove that the seller had known about this and had deliberately and fraudulently concealed this at the time of sale, the purchaser has no recourse against the seller and will have to have the roof fixed at his own expense.

This does not mean that the seller can walk away from a property once an agreement has been signed.

There is an obligation on the seller to deliver to the purchaser, exactly what the purchaser had bought in terms of the sale agreement.

It usually takes two to three months to register transfer.
The seller must maintain the property from the date of sale to the actual date of transfer, in exactly the same condition it was in at the time of sale. For example, if the pool was sparkling clean at the point of sale, the seller cannot neglect the pool and will be liable to the seller for any damage to the pool that occurred after the date of sale.

Buyers, take your time when you view a property: buying a property is probably the biggest investment you will ever make and once you have signed an offer to purchase, you have very little recourse to the seller. It may also be advisable to have the property thoroughly checked out by an expert before you sign on the dotted line, or to make the agreement conditional on such an inspection.

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