This week the YourProperty panel assists a reader who is still battling to extract certificates of compliance from the seller after purchasing a property several months ago.
Sean Radue Attorneys
As part of their agreement of sale, the seller was obligated to provide certificates detailing the state of the electrical system, plumbing and borer beetle within the property.
The reader explains that she initially approached the bond registration attorneys, who advised that this aspect was not within their mandate and that she should speak to the conveyancers or attorneys dealing with the property transfer.
She has, in the interim, managed to obtain the electrical and plumbing certificates but is still struggling to source the one for borer beetle.
The reader would like to know how she could go about ensuring that she is provided with this outstanding document.
Certificates are usually required by the purchaser when concluding an agreement of sale for a fixed property, says Sean Radue of Radue Attorneys.
“They are usually also a requirement for the insurer of the property, failing which a claim may be rejected.”
Radue says the property may be old or appear to be in a poor condition and the purchaser is entitled to try and ensure that potentially costly or dangerous aspects are at least in an acceptable condition.
“The most commonly requested certificate is the one relating to the electrical installations within the dwelling.”
One of the regulations pertaining to electrical installations under the Occupational Health and Safety Act is particularly relevant in this instance, says Radue.
“It requires that a seller provides the purchaser with an electrical certificate of compliance, certifying that the electrical installation is within acceptable specifications. The same applies where an existing certificate is older than two years.”
Radue says any alterations or additions to an existing installation also require such a certification.
“It further provides that the ‘user or lessor may not allow a change of ownership if the certificate of compliance is older than two years . . .'”
According to Grant Hill of Miller Bosman Le Roux Attorneys, another regulation specifically states that a failure to comply with the provisions is an offence and a conviction may result in imprisonment and/or a fine.
“Despite being a legislative requirement in some instances, the requirement could also be considered a material or suspensive condition.”
In other words, the provision of the specified certificates would be a condition suspending the operation of the agreement until it is complied with or waived, says Hill.
“The relevant clause usually sets out the requirement to the effect that the seller must provide the purchaser with the specified certificate prior to registration of transfer’.”
Hill says the clause dealing with suspensive conditions may, in turn, refer to this particular provision, clarifying its suspensive nature.
“It’s usually the conveyancer who carries out the gathering of the required documentation from the seller but it remains the seller’s responsibility to source the required certification.”
The conveyancer then passes the documentation on to the purchaser on transfer, says Hill.
“In this instance, the purchaser should have examined her agreement of sale to determine the required timing and manner in which the various certificates were to be provided.”
Hill says she should have then followed up with a notice of the seller’s breach in terms of the breach clause of the agreement, which usually provides for compliance within a specified period.
“Failing this, the purchaser could have pursued cancellation with or without damages, or claimed for specific performance.”
The conveyancer could also be notified of the breach thus preventing the continuation of the transfer process pending the seller’s compliance, says Hill.
See the reader’s question here.
