Gosh, are you are sitting in a situation where you think you bought a Dud of a property? There are recourses you can take. It’s so easy to get caught up in all of it, especially if you are a first-time buyer. It’s all so exciting and sometimes you miss stuff planning where you will put your couch and how your little boy’s room will look with a new coat of customized paint.
The Role Of The Seller Declaration
We wrote an article about this a while back – what to look out for as a buyer when you buy a property. We also wrote about how Sellers can no longer hide behind the clause Voetstoets. It’s all here.
A Slippery Slope If You Are The Seller
This is a slippery slope if you are a seller who is extremely excited that you sold a property with defects that were intentionally concealed during the process to sell a property. The law stands and it will be upheld. And an incorrect disclosure can cost you quite a bit and that’s that! Proving it in a court of law is another story but try and come to an amicable solution. If there is evidence that defects were not disclosed by way of the Seller Declaration and Property Condition Report, this will cost you dearly. And it should because when buyers buy a property the initial hurdle is to cover the conveyancing and the transfer costs. When you get over that hurdle and you still have a little left to paint and retile your dream home and you find that there are defects on the property that were not declared you kind of hit a new low.
Did you sign for a property that you feel was not covered in the Seller Declaration?
Well, it happened to me afraid to say. We noted on the Seller Declaration that the water table in times of high rainfall rises and that during these times water becomes visible as groundwater. After the heavy rainfall this summer and it’s only April 2023 the buyer of a property in Bromhof sent an e-mail complaining, as they should that the water was a problem. On balance, as an Agent, we declared all the aspects for the buyer to consider. On balance, there was no water visible when we sold the property in Winter last year. But in truth, the buyer did know that the water table was an issue during periods of high rainfall. My favourite concept – is RAIN.
Finding Out The Hard Way
Firstly, upon finding this out the hard way, there are a few things you could consider in addition to staying calm:
- Refer back to the Seller Declaration and Property Condition Report. What does it say about the defects you have observed upon moving in? Did you sign for these defects? If you did this could be tricky. Remember it is a law that a Seller Declaration and Property Condition Report be submitted together with the OTP. Not negotiable. So go to points 2 and 3.
- You did have every opportunity to view the property and take it all in warts and all. I would refer to (1) above. I am assuming most buyers view at least once or twice or even 3 or 4 times to make sure they absolutely love the property.
- On reflection, if you find you are still of the opinion that the property condition is not what you thought it was, then remember the Bank who has financed your property quite possibly ran in for 2 minutes to check that the property did in fact stand and that there are 3 bedrooms, etc. The bank will have had a look at your property closely because until the bond is paid it is the Bank’s asset. These bank inspections are quick – only a few minutes though.
- You can try the Body Corporate but I won’t hold my breath for that one. Especially if this is a pre-existing issue in the complex or the area.
- You could try the Agent as a next step. But if the Seller was smart even an experienced eye will not catch concealment.
- You could as another recourse, go to the attorneys that did the property transfer. Go hard and stand your ground. Remember the Seller always gets to choose the attorney. The Seller always wants to maintain control of the transaction, period. The buyer never gets to decide on this appointment, and if they do interrogate the relationship vigorously between the buyer and the attorney. There could be a conflict of interest (another story for another day). The agent that facilitated the sale who is accredited with the PPRA will need to sign the Seller Declaration and Property Condition Report together with the Buyer. It is essential that the buyer know what they are buying and make provision for remedial actions on the property. It’s only fair. You must know what you are buying.
If you have the slightest doubt as a buyer then…
Don’t sign the OTP. Here is a useful link to outline a recent ruling that covers this and a broader spectrum. If you have questions about the condition of the property and the “warts” that come with the property ask questions. Interrogate the Agent about what you see or have found out when you moved in. Check the OTP to make sure the Seller Declaration is clearly marked as an Annexure. Are the defects you have noted, visible on the Seller Declaration? Look closely at the OTP. Remember if it is not on the OTP then it’s like it never happened. We don’t roll like this at KW Select but many others do. And in fairness, it happens to Agents that are TOO busy or Agents that are inexperienced. Another course of action after the fact is to get a Home Inspection done but this is done after you have realised your dream home is not what you thought it was. Call on someone with experience to give you a second and if need be a third or a 4th opinion. The Home Inspection is at your cost if you are the buyer. It’s a risk but the reward could be that you know what you are buying but it does go deep.
I would know. It has happened to me…
When I bought the property we now live in, with all honesty we bought a house that had more than a few problems. Damp was concealed. The roof leaked. There was damp that had been patched. Now a few years on I need to fix what has now changed with legislation. I also need my own conscience. CLEAR and free from future liabilities. I WILL sell a blessing and NOT a curse. It will cost me money to make the repairs that should have been made originally before all the concealments were made. And there were quite a few things that were concealed on our property that has become our home. Another story for another day. In truth, I missed a great deal being caught up with the fabulousness of our home. In truth, the Sellers who now live in Australia concealed a great deal that cost me nothing short of an arm and a leg to fix. The Agent bailed on me. Literally hid from me and never answered my pleas for assistance. And the legislation was not on my side. It now is so I need to work on what needs remediation. Yes, I can declare the ‘warts’ but a buyer will often take a chance with the costs to repair these issues. I do have quotes and am about to embark on creating a blessing and not selling a curse. You do know what Karma is though.
How We Roll at KW Select With A Seller Declaration
KW Select prides itself on creating win-win solutions for all parties. From the start to the finish and well beyond transfer. If the wrong thing is walking away from a sale, then so be it. But we are extremely hard on ourselves to ensure that this win-win occurs, ALWAYS. There is nothing more heartbreaking than a buyer who no longer loves their dream home. The KW Select Seller Declaration is a pretty onerous document. There is an entire page for further comments. You can run but you cannot hide and certainly not behind a clause like Voetstoets. “Voetstoets” merely means in this day and age that if you declare with honesty the true condition of the property you are selling the property as is with all the ‘warts’ declared on paper. The buyer has a choice. Buy it a property with all the warts or not. But the seller declaration is in place to protect all parties and fairly at that.
Do you have plans to sell?
KW Select is a prominent player in Randburg. Keller Williams as a global brand is the largest real estate franchise in the world. KW Select prides itself on our ability to implement changes to the legislation that governs how property is bought and sold in SA. If you need a true sense of what your property is worth on the open market click here to visit our website and book your valuation online. KW Select upholds what the Property Practitioners Regulatory Authority has to say about the code of conduct in the industry. Visit our website to book your valuation today.
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