Private one-off home sales not subject to the Consumer Protection Act

In the selling of used (previously occupied) homes, estate agents quite frequently find, often late in the negotiation process, that the buyers have a very wrong idea of the protection the Consumer Protection Act gives them. In commercial transactions of all kinds, says Rowan Alexander, Director of Alexander Swart Property, this Act makes provision for recourse or even complete cancellation of the agreement if, after the sale, the product is found to be flawed or it shows the supplier did not ensure that the buyer fully understood the sale terminology.

This, however, is not the case in the majority of residential sales: here the contract, although facilitated by an estate agent, is a private treaty between the seller and the buyer. The seller is not seen as a "supplier", one whose daily business it is to deal with the public, and is therefore not subject to the Act. By way of contrast, residential property developers ARE classed as suppliers i.e. building and selling homes is their normal business and they have to take care that they do not act in ways which the CP Act would not condone.

Private sellers are afforded protection by the Voetstoots Clause to a large extent. The basic principle applies that the buyer agrees to purchase the property "as it is". The onus is on the buyer to inspect the property thoroughly so that he is satisfied with its condition before the sale contract is signed. The seller should be requested to sign a warrant to the effect that all aspects of the home are in good working order. Then, if a problem crops up later and it can be shown that the seller was aware of it but did not disclose, he can be sued for compensation or held liable for the repair costs.

"The whole issue of protecting both the seller's and buyer's rights in a home sale has time and again been thrashed out in the courts," says Alexander, "and the only advice agents can give is the old one, "Caveat emptor" - let the buyer beware. Buyers can never be too cautious. They should call in qualified consultants, especially building inspectors, if there is even a hint that a problem may be lurking somewhere. Mistakes in this field tend to be horribly costly but if the right precautions are taken they can be avoided."

For further information, please contact Rowan Alexander on 082 581 3116 or by email : rowan@asproperty.co.za