Buy through an agent and avoid these big purchase potholes

Buy through an agent and avoid these big purchase potholes

Private Property South Africa

A lot has been said about the risks involved in being a private home seller, but not as much about the risks to the buyer in purchasing directly from an owner – although these are also considerable, says Berry Everitt, CEO of the Chas Everitt International property group.

“For a start, there is a much greater risk of non-disclosure of defects. Private property sales unfortunately fall outside the ambit of the Consumer Protection Act and private sellers can thus include a voetstoots clause in their sale agreements.

“This basically means that once they sign an offer to purchase, the buyers in such transactions are basically accepting the property ‘as is’, and will have very little recourse against the seller for any defects that may later become apparent, except if they can prove that the seller knew about these defects and deliberately concealed them - and if they are prepared to spend time and money on a court action to claim damages.”

The difference when buying though a reputable estate agent, he says, is that the agent will ensure that the seller fills in and signs a comprehensive “defect disclosure” form that becomes part of the sale contract, so there is much less chance of buyers coming across any nasty surprises at a later stage.

“Estate agents are also bound by a Code of Conduct to protect the interests of both buyers and sellers, so although there is still doubt as to whether agent-facilitated sales fall under the CPA, most agencies no longer include a voetstoots clause in their sale agreements.”

Secondly, says Everitt, there is a much greater risk of losing your deposit. “Unwary buyers signing a private sale agreement may be in danger of losing their deposit in one of two ways, the first being that they are persuaded to pay it into the seller’s private bank account and the seller then absconds with their money.

“Alternatively, if the sale agreement is not drawn up properly and does not give them sufficient time to obtain a home loan, for example, or to sell an existing home in order to be able to afford the new one, they may find they have forfeited their deposit in a cancelled sale.”

If you buy through a reputable agent, though, any deposit you pay will be safely held in the audited trust account of an agency or an attorney, and you will even earn interest on this money until the property is transferred. In addition, the sale agreement you sign will be correct and legally compliant, he says. The third potential problem with private sales is that you may not get everything you thought you were paying for. “Sale agreements concluded between private sellers and buyers often do not stipulate exactly which ‘fittings and fixtures’ are included in the sale and which not. This can easily lead to inexperienced buyers arriving at their new home to find that the seller has removed blinds, carpets, ceiling fans, stoves, the dstv dish, the pool cleaner, the borehole pump, potplants and many other items that they thought were included in the sale.

“On the other hand,” says Everitt, “any sales agreement used by a reputable estate agent should have a section which spells out any items that are specifically not intended to be included in the sale (such as an heirloom chandelier, or a handcrafted mirror), with the implication being that everything else is included.

“If the buyer is concerned about specific items being included, such as custom-made curtains or blinds, these can also be specifically written into the agreement before it is signed by both parties.”

Fourth, private sales hold a greater risk of transaction delays. Transfer is likely to take much longer when you buy from a private seller who cannot monitor and motivate the transaction as it goes through the hands of a bond originator, bank, attorneys and finally the Deeds Office in order to be completed. And that can mean considerable extra costs for the buyer, such as extra rent, he notes.

“But when you buy through a Chas Everitt agent, for example, you are plugging into a whole transaction eco-system that is secure and has been specifically designed to progress the transaction and achieve transfer of the property to the buyer as quickly as possible.

“So given all the above, home buyers are undoubtedly better off when they purchase through a recognised estate agency – and especially so if they are first-time buyers who don’t have a lot of property knowledge or experience and need someone to protect their interests as well as those of the seller.”


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