A purchaser, who has taken early occupation of a property, is questioning alterations made after the parties signed the agreement of sale and before registration of transfer.
The new owner is not satisfied with the changes as he viewed the property in a certain condition and made an offer based on what he saw. This situation poses the question of whose responsibility it is to restore these alterations.
After signing the agreement of sale, the seller removed light fittings and electrical wiring inside the main dwelling. The purchaser assumes this was done to satisfy the requirements for a certificate of compliance (COC) to be issued.
See the reader’s question here.
It is normally the duty of a seller to provide a certificate of compliance or for the purchaser to insist on its provision as a requirement for a sale to be effective.
It is also typical to find a clause in the contract providing that the property is sold with all fixtures and fittings included.
It is thus quite reasonable to assume that the property will look and function much as it did at the time an offer was made, excluding any specific repairs or alterations that may have been stipulated in the contract.
Although the extent of the wiring and fittings removed is not described, it clearly bothers the reader and it is fair to expect that it has some material impact on the functionality of the property.
It could be argued that the mere removal of faulty wiring and fittings is not permitted under the contract.
Yes, the COC was issued and the wiring is now assumed to be compliant, but to the detriment of the property and our reader. A more correct approach would have been for the seller to repair and make good that which was not compliant, properly functional or dangerous.
The seller is not allowed to make any alterations – including electrical wiring – once the agreement of sale has been signed. Only an electrician should attend to electrical work and the compliance certificate that is issued is valid for two years unless changes are made.
Where work is performed after the certificate was issued and within the two-year period, a re-inspection must be done and a new certificate issued.
Should a purchaser question the validity of an electrical compliance certificate, he or she bears the onus to prove it is invalid.
In such an instance, the purchaser is usually advised to appoint (at his or her own costs) an electrician to do an additional inspection and to report on the validity of the certificate.
If there are conflicting compliance certificates the matter is usually referred to the Electrical Approved Inspection Authority of South Africa (EAIASA) for a decision, which can delay a transfer.
Should all the parties agree, one could draw up an addendum signed by the seller and purchaser wherein the conveyancer is allowed to proceed with registration on the condition that a certain amount of the seller’s proceeds is kept in a trust account pending the outcome of the report.
Should any changes be necessary before a valid compliance certificate is issued, it must be paid from the seller’s proceeds as it remains the latter’s duty to ensure a valid certificate is issued.
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