Determining the respective duties of the seller and the agent
Category General
Your Estate Agent’s Duties
This has largely been defined the Estate Agency Affairs Board. All estate agents are obliged to comply with its provisions in every sale they negotiate. No estate agent may attempt to sell your property without a verbal or written mandate to do so and, once having received it, must protect your interests to the best of his/her ability. Your agent is obliged to market your property solely in terms of your mandate and to only present written offers made in good faith by any potential Buyer. Your agent must also explain the terms of your final contract of sale to you before it is signed and let you have a copy of it once the transaction is fully concluded.
Your Own Obligations
You have a duty to disclose to your agent any servitudes over the property known to you, extensions done without approved plans, and anything else which could prejudice the sale. You must advise the outstanding balances on all bonds registered over the property and must also advise your agent of any foreclosure proceedings by your bank in you are in arrears.
You remain obliged to keep all your rates and bond payments up to date and to maintain the property in good condition until registration of transfer. The risk in the property is yours up to date of registration.
Your Prospective Buyer
It is very important to give your agent access to all possible buyers of your property at all reasonable times. If the potential buyer intends paying a cash deposit your agent must enquire as to his ability to pay it. Likewise if the buyer needs a mortgage loan the agent must ascertain his salary and other sources of income to be sure he qualifies for the required amount.
Fixing the Purchase Price
Your agent will ascertain a market-related price for your property. Once you mandate your agent to sell at a given price you cannot refuse to sell at that price to a qualified buyer without becoming liable for commission.
Occupation of the Property
If you agree that your Buyer may take occupation at any time prior to registration of transfer you must ensure that the occupational rentals are paid on time each month.
Your Sale Agreement
Both the Seller and Buyer are bound by its terms once it is completed. Your agent has a duty to protect your interest and to ensure the final agreement reflects the actual terms you have negotiated. It is essential that you give your agent correct information to ensure there are no serious defects in the final contract. Once you have signed a sale contract, you are liable for agent’s commission.
Compliance Certificates
By law an Electrical Compliance Certificate has to be in the possession of every new purchaser of a property confirming its electrical system complies with safety regulations.
Latent and Patent Defects
Your contract will contain a voetstoots clause absolving you from liability from latent and patent defects. This is not an absolute provision, however, and you will be liable for any undisclosed latent defects which you are aware of or are presumed to know about. Don’t try to conceal defects– they will become latent defects.
You will also be liable for anything that is not functioning properly, such as a geyser, pool pump or security system. You will not be liable, however, for obvious defects which the buyer can clearly see on an inspection of the property. Any new defects occurring after sale of the property but prior to registration of transfer will also be your own responsibility unless caused by the buyer in occupation.
Fixtures and Fittings
You are obliged to pass over occupation to your buyer of your property inclusive of all fixtures and fittings. You may not remove light fittings, water features, fitted carpets, curtain rails and the like. A swimming-pool net, especially designed for your pool shape and held down by hooks fixed to the ground, is also a fixture. Likewise all movables which form part of a fitted unit, such as bar stools and keys. You should ensure that anything which you may want to take with you is specifically included in your contract if the buyer agrees you may remove it.
Author: CLE Properties
