The Consumer Protection Act (CPA) gives you recourse if something you buy fails in some way within six months. But when it comes to probably your biggest purchase – your home – who would you hold responsible if the roof was found to be unsound a month after you moved in?
The act doesn’t cover private sales, so if someone advertises and sells their own home they can do so with a “voetstoets” clause – in other words, if the buyer discovers a major structural problem down the line, there can be no comebacks.
But when estate agents are involved, the issue becomes more complicated, and it’s the subject of fierce legal debate.
Some attorneys argue estate agents are not “suppliers” in terms of the act, because unlike car dealers, they don’t assume ownership of homes at any point – they are merely intermediaries.
Thus, homes can continue to be sold “voetstoets”, as in the past.
Historically, this clause has protected sellers against liability for latent defects that existed at the time of sale – the buyer had no recourse against the seller if defects were uncovered after the sale, unless the buyer could prove the seller not only knew about the latent defect but also concealed it.
In the other camp are those who are adamant that estate agents do indeed fall under the act’s description of a supplier, because of their role in the marketing and promotion of the “goods”.
What everyone agrees is that clarity will only come when a case is tested in either the Consumer Tribunal or the courts.
Meanwhile, if you’ve bought a home recently, or are in the process of buying one, you will know about the introduction of a new document – an “Immovable Condition Property Report”, often referred to as the seller’s declaration.
The Estate Agency Affairs Board (EAAB) compiled the document to help agents comply with the act, being of the view that it does indeed apply to agents.
As a board spokesman put it, in responding to my queries: “The report specifically deals with defects in the property – any condition, whether latent or patent, that would or could have a significant adverse impact on the value of the property, or could significantly impair or impact upon the health or safety or any future occupants of the property; |or that if not repaired or removed, could significantly shorten or adversely affect the expected normal lifespan of the property.”
It was not a case of the seller merely being requested “to provide yes or no answers to the statement concerning the condition of the property”, she said.
The report should not be regarded as a substitute for inspections that a buyer wanted to get before signing a sale agreement, she said.
“Potential purchasers are also urged to obtain professional advice, or have a professional inspection of the property undertaken, and provision should be made for this in sale agreements.”
Which brings me to the story of a family who recently bought a home in Kloof, KwaZulu-Natal. They have asked that they not be named.
The seller, a divorced woman planning to emigrate, filled in a declaration form provided by the estate agency mandated to handle the sale. There were about 20 questions relating to the condition of the property, ranging from “Are there roof leaks of any kind?” to “Are there damp problems in any of the buildings?” and “Are there any structural defects that you are aware of?”
Next to each, the seller ticked yes or no.
She indicated she wasn’t aware of any structural defects, and there were no roof leaks or any other problems a buyer would be concerned about.
Still, the buyer wanted to be sure, so he asked a specialist home inspection company, Inspect-a-Home, to do an assessment, and insisted this be made a condition of the sale.
Despite the estate agent later trying to convince him to cancel the inspection, arguing that it would hold up the sale, it went ahead on September 1.
The subsequent report, backed up with photos, revealed that there were quite a few problems with the home, the main one being that the corrugated iron roof was badly rusted and ill-fitting in places, and would need to be replaced.
The quote for that was about R100 000.
Interestingly, no roof problem had been revealed on the seller’s declaration form.
“Obviously I’m very relieved that I insisted on getting that professional inspection done, and it was worth every cent of the R3 500 I paid for it, but don’t think either the seller or the agent were deliberately withholding that information from us,” the buyer said.
“The woman was unlikely to be able to get up on the roof to inspect it, and even if she did, would she have known what to look for?”
The two parties agreed to split the cost of the new roof, so the seller dropped the price of the property by R50 000. The buyer moves in this weekend.
With this case in mind, I put it to the board that the declaration form offered buyers a false sense of security. This was the response: “The EAAB believes that the completion of the disclosure report goes a long way to meeting and fulfilling the requirements of the CPA and does not, as alleged, offer a false sense of security.
“Should it later transpire that latent defects manifest themselves in the property, of which the seller should reasonably have been aware but failed to disclose, the purchaser would be entitled to rely on the condition report completed by the seller when seeking redress.”
But redress from which party? And what redress?
The act states if a consumer buys something and within six months it proves to be defective in some way, they can return it for their choice of a refund, replacement or repair.
But obtaining this redress is tricky when it comes to home purchase deals, says consumer law expert advocate Neville Melville, whose updated, second edition book The Consumer Protection Act Made Easy was recently published.
“There is nothing to force the consumer to disclose a list of defects to the agent,” he said. “This puts the agent in a tough position because, as I argue in my book, it may be that the CPA would prevent the agent from including a voetstoets clause in the agreement.
“I am aware of the argument that the estate agent is not, in fact, selling the property, but merely assists the seller to do so. The problem I have with this is that a supplier is someone who markets goods and services. To market, in turn, includes to promote and supply.
“Also, the estate agent appears to fall within section 9 of the CPA regulations, also hotly contested, which requires the intermediary to disclose ‘information which may be relevant’.”
So does that mean the buyer could go after the agent if a defect came to light within six months? And when is that six-month period deemed to start in terms of a property purchase?
“There is a lot of debate on this,” Melville said.
“One view is that the act cannot have intended that the deal be cancelled and a refund given after transfer at the deeds office. The act states that the clock starts running after ‘delivery’ of the goods.
“If the intention is that this is when the consumer first has possession of the goods, then it would be on occupation – assuming, of course, I am correct the agent is a supplier.”
According to the act’s returns section – section 56 – a supplier cannot claim as a defence that they could not have been expected to have discovered the defect.
“So if there is a material defect, the consumer can demand a refund,” Melville said.
“The difficulty is that, if the seller is off the hook, how will the agent be able to transfer the property back to the seller and refund the price paid – probably by a bank?”
The issue would have to be clarified by the Consumer Tribunal or the courts, Melville said.
“I have no doubt that the clarification will be forthcoming sooner rather than later as it is a burning issue.”
What is the National Consumer Commission’s view? One of its legal advisers is on record as saying “anyone within the chain of supply who for that particular transaction is best positioned to take responsibility, the commission would hold him or her liable for breach of consumer rights.
“However, suppliers may be exempt from these requirements provided they make full disclosures in respect of quality, defects and suitability of the goods… these disclosures must be brought to the attention of the consumer upfront and signed for as acknowledgment”.
And what if defects are not disclosed? “All those involved in the value chain will be held accountable for non-disclosure,” the adviser said. “The Consumer Tribunal or court will decide on the extent of liability for each of the parties.”
Conveyancing attorney Bob Wynn, of Durban firm Berkowitz, Cohen and Wartski, shares the view that property deals involving an estate agent were intended to be covered by the CPA.
But in reality it remained a case of “buyer beware”, he said, especially given that the regulation of building standards was not what it used to be.
“That, coupled with the fact that an estate agent has a vested interest in closing a deal as quickly and simply as possible, and would naturally prefer potential buyers not to know about any possible defects, means consumers really need to take steps to protect their interests,” he said.
That included seeking professional help in scrutinising |a sales agreement and making any sale conditional upon a professional inspection of the entire property.
“Right now, sellers are only compelled to obtain a certificate of electrical installation compliance,” he said. “But wiring only makes up a small proportion of the cost of a house. What about the rest?”
Inspect-a-Home chief executive Eric Bell claims some estate agents are “telling buyers they don’t need to have a house they’re interested in buying professionally checked as the seller has made a full disclosure of any defects”.
He added: “This is totally misleading to the buyer as sellers will not be aware of all the defects, and if they are, may choose not to disclose them.”
Whatever the accurate interpretation of how the act applies to the selling of homes turns out to be, would-be buyers should protect their interests by having a home professionally inspected before committing to a deal.
When signing a sale agreement, be sure to insert a clause making the deal conditional upon the inspection.
Make sure you choose an inspector accredited with the National Association of Certified Home Inspectors.