Real Estate Investor Magazine South Africa October 2018 | Page 7

forded if the consumer has been expressly informed of the condition of the goods and has agreed to accept the goods in that condition. It is important to remember, however, that the CPA only applies in instances where the seller is selling “in the ordi- nary course of business”. Quite simply, the CPA does not apply to any private trans- action, such as the sale of one’s home, and in these cir- cumstances, the seller will be able to rely on the voetstoots clause. There are a few circumstances where the CPA would find application (and by implication the voetstoots clause would not apply), such as: • The sale of a property by a property developer or trader in the ordinary course of his/her business; and • The services provided by an estate agent, irrespective of whether the sale itself is private. There is some debate as to the extent of the definition of “ordinary course of business” and whether, for example, it is wide enough to encompass the sale of a seller’s only buy-to- let investment property. Is there any practical advice for property investors regard- ing the CPA?  As a seller: • Whether or not uncertain as to the applicability of the CPA, rather include a voetstoots clause in the deed of sale on the off-chance that it can be relied upon; • Allow the purchaser to thoroughly inspect the property, affording him/her the opportunity of becoming aware of any latent or patent defects and expressly agreeing to the condition of the property; • If you are aware of any defects, disclose these in the deed of sale, as this will prevent a later claim by the purchaser, even after registration of transfer; and • One may even go so far as to engage the services of a property inspector in order to list any defects for the purposes of disclosure; As a purchaser: • From the outset, establish whether the CPA applies and if in doubt, insist that the deed of sale records its applicability. • Whether or not the CPA applies, undertake and document a comprehensive inspection of the property, even making use of property inspectors. Even if the CPA protects you, enforcing its provisions after the registration of transfer may prove difficult, especially if the seller contends that the CPA is, in fact, not applicable and that he was not aware of any defects; and BRING YOUR BRAND TO THE FOREFRONT Sponsorship opportunities now available. Contact us at: [email protected] [phone] • Act as soon as you become aware of any defects, particularly prior to registration of transfer. The CPA is riddled with time frames and, moreover, before the registration of transfer, as a purchaser, you still have a lot of bargaining power. SA Real Estate Investor Magazine OCTOBER/NOVEMBER 2018 5