In any property transaction the conveyancer (a specialist attorney) plays a crucial role. In South Africa the seller normally nominates the conveyancer, while the purchaser pays the transfer (legal) fees. The purchaser will often request that s/he be permitted to use his or her own conveyancer, to negotiate a discount on the legal fees. However, if the purchaser chooses the conveyancer, the seller could be prejudiced by the conveyancer allowing flexibility as regards the purchaser’s performance, or interpreting the agreement in the purchaser’s
favour.

One could argue in similar vein that if the seller nominates the attorney then the purchaser may be prejudiced. Even though there are typically more obligations on the purchaser than on the seller, the seller usually requires particular protection.

Ultimately the selection of a conveyancer can have a significant effect on how the transaction progresses. The best conveyancers are natural “deal- makers”, and instead of focusing on problems and creating conflict, they solve problems and make transactions effective. Agents know which conveyancers are efficient, and which ones do their best to make the deals progress smoothly and expeditiously. Allowing the agent to select the conveyancer is possibly the most sensible option if you want to make sure that the transfer process takes place in the most efficient and uncomplicated manner.

A common occurrence in the property sector is that the purchaser and seller neglect to read the sale agreement carefully and ensure that all the terms are understood. Both parties should ensure that the agent explains carefully the implications of all the terms. There are many issues that come up when selling property, two examples of misconceptions are:

Voetstoets

Sellers sometimes believe that because there is a voetstoets clause in the agreement that purchaser simply buys the property as is, problems included. The problem is that many defects in the property are not noticeable or even impossible to detect unless you are living in the property. A simple example is a leaking roof. If the property is sold in a dry season and the seller does not disclose that the roof is leaking, then regardless of the voetstoets clause, the seller is liable for the damage if s/he was aware of the defect. The lesson is that it is far better for the seller to disclose all the defects, because then there can be no comebacks. So in this example if the seller had disclosed the leaking roof prior to the transaction being concluded then the purchaser has no claim against the seller.

Sectional Title

When buying into a sectional title complex, you are buying the inside of your unit as well as a share of all the common property. In sectional title the biggest risk is that you are also taking responsibility for a pro rata portion of the body corporate debt, in line with the participation quota assigned to the unit. If the body corporate is bankrupt then instead of purchasing an asset you could be purchasing a liability. So you need to ensure that you receive a copy of the updated audited figures of the body corporate before making an offer.

Make sure that whether you are buying or selling property that you have honest, efficient, and creative people advising you and ensuring that you achieve the objectives expected when the agreement was signed.

Author Bio: Durr Estates has 41 years of experience in selling property in South Africa. This includes Cape Town property, Milnerton property and Port Elizabeth property, as well as Durbanville property, Paarl property, Somerset West property and more

Category: Real Estate
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