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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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Freddie i purchased a property which is liquidated the owner

Customer Question

Hi Freddie i purchased a property which is liquidated the owner stayed on the premises till the 7 May this year. Now my contract states that occupational rent will be calculated at 9% per annum on the amount owing payable monthly from date of possession. I received the keys to the property but have not moved in due to the place not being in a livable state. I started with renovations and the electricity was cut today. I've been in contact with the liquidators about several issues one of them being fixtures which was removed from the premises. Thus i have refused to pay occupational rent until such time as time as someone gets back to me. Do i have a right to refuse paying until we have come to an agreement regarding all the issues. If I'm not staying there but have the keys do I have a right to refuse payment till i physically occupy the premises. Please advise, thank you *****
Submitted: 2 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 2 years ago.
Good day and thank you for your question. My name is ***** ***** I will try and assist you today.
In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.
Does the contract state that you have to take occupation at a certain date, or that you are allowed to take occupation from a certain date?
Customer: replied 2 years ago.
The contact states the following under a section called. Possession, Occupation and Risk
Possession and occupation of the property shall be given to the purchaser by the sellers on the 1 May 2015 by the sellers, where after the risk of profit or loss shall pass to the purchaser,subject to any legal or illegal occupation of the property by occupants.Now the liquidated owner only vacated the premises on the 7 May 2015 and I was handed the keys by his bother.
As i have mentioned we have not moved in due to serious repair work that need to done and can not be done while residing in the home.
Compiling to my frustration, no too little feedback from the liquidators, regarding a few issues such as, fixtures being removed from the premises, the water and lights have now been cut yesterday due to arrears from the liquidated owner after my own attempt to switch the account from the 7 May into my own name only to be told the the Liquidator needs to complete a form and settle the arrears account. I have sent this letter to them and till today have not had a response, nor have i received a response with regards ***** ***** fixtures which was removed, hence why I refused to pay any further money due to lack of communication and response. Surely I have some rights! I have paid the commission, deposit and tax. Plus I have an issue with them regarding the chargers. They expecting me to pay Tax and Transfer cost, I believe it's one or the other, is this correct? it can't be both. This is but just a few which I can think of right now. even the contact does not stipulate the correct plot which i have purchased on auction they have it set down as Plot 238, but this plot was sub-divided many years ago and the stand number is ***** at the council as Plot R/238 no where in any of their documentation does it state that i have purchased Plot R/238, SO WHAT DID I BUY?? is my question.I really hope you can assist me with urgent feedback as I'm meeting with the Liquidator and auctioneer tomorrow morning to discuss and finalize where we are going with this purchase.
Please let me know what are my rights. I have even contacted the banks lawyers responsible for the transfer of the loan from my bank and they forwarded me on to a litigator whom I'm still trying get to contact me for over a week now.
Time is running out for me and I need to get my facts straight before tomorrow morning.
Thank you *****
Expert:  WCLawyer replied 2 years ago.
Was the property bought 'voetstoots'?
Who removed the fixtures? The liquidator?
Customer: replied 2 years ago.
HiYes it was voetstoots. But the auction was done and closed on the 27th March while the property was auctioned, the previous owner was staying on the premises until the 7 May, during this time period i have tried setting up numerous meetings through the auctioneer and the current owner directly to view the property and to discuss things like, were the borehole is situated, alarms, sewage etc. So I posed the question to another lawyer acting on behalf of the Liquidator involved now with regards ***** ***** fixtures being removed. HOW FAR DOES VOETSTOOT go. He was the one who stated via telecoms "what can he take" WELL my point. Till today I am still waiting for an inventory list of what the auctioneers made note of before or on the date of sale. I have sent them mails upon mails photo's of missing fixtures such as DSTV dish x 3, water filtration systems x 2, gas stove plus bottle x 1, Aircon units x 2 he even removed +/- 20 trees from the plot to give you an idea. I even had to go the SAPS to lay down an affidavit of the missing fixtures and send this to the lawyer whom stated "what can he take" and still have heard nothing of when or how they planing to re-emburse me for the fixtures removed. This explains as to why i was restricted access to the premise! So now I have no proof as to the fixture note before auction no feedback and no fixtures as mentioned, except the images of which i took on the day in front of the owners bother or so called brother of the missing items.Hope this gives you a better idea of my frustrations and hence why I refused to pay occupation until I get answers and actually move in one day. But to add to my frustration as mentioned now the power had been cut so we can't even live their, What if we did?? How do you live on an plot no power no water due to pump not running?I am desperate for answers WHAT ARE MY RIGHTS. I'm running around getting no where paying, paying, paying, hence why I refuse to pay any further transfer, occupation etc UNTIL I GET SOME ANSWERS.
What are my rights am i wrong in my ignorance and action.Please advise
Expert:  WCLawyer replied 2 years ago.
I have one more question: Are they pushing you to pay occupational rent?
Customer: replied 2 years ago.
No one has even come back to me on any matter, not even the fact that i have not paid occupational rent for May or June and i won't until i get answers of where I'm at in this situation. you give i give. not a mail not a call nothing.Rgds
Expert:  WCLawyer replied 2 years ago.
1. First of all, pertaining to 'voetstoots'.
In order to explain the working of the voetstoots clause, we need to distinguish between patent and latent defects. Patent defects is defects that is immediately visible, or visible after a thorough inspection of the item. Latent defects is defects that existed at the time of purchase, which could not have been detected by a thorough, yet ordinary inspection of the item purchased. It must be noted that we are talking about defects that existed when the agreement has been concluded and not defects that came into existence after the transaction has been concluded. Also, you should note that there is a difference between a defect that exists and a defect that manifests itself. For example, a smoke alarm can be defective before the conclusion of the sale, but the mistake only manifests itself if the thing does not go off.
When an agreement is concluded ‘voetstoots’, it means that the seller and the purchaser agrees that the seller is not responsible for any of the latent or patent defects that existed at the time that the transaction was concluded. This means that all risk passes to the seller as soon as he pays for the item.
However, a seller will not be protected by the ‘voetstoots’ clause as a defence for latent defects if the seller knew of the defects and deliberately conceals the defect, so as to entice the buyer to buy. The burden of proof is on the buyer, however, to prove this. The buyer must, in other words, prove that the defects existed at the time of the sale, that the seller deliberately concealed it and that he did so because he knew the buyer was not going to buy, or were going to buy at a reduced price, if the defects were made known to him.
Only if a buyer can prove this, can the seller be held liable for those defects.
You should also be aware of the fact that there is no legal obligation on a seller to point out latent defects that he was aware of to the purchaser.
So, insofar as structural issues goes, it is doubtful that you can hold the liquidator or the auctioneer liable, unless they blatantly lied to you about certain things, which may entitle you to cancel everything.
2. With regards ***** ***** rent: You are normally only liable for occupational rent if you occupy the property. If, however, the contract or the sale conditions state that you will be liable for occupational rent from a certain date whether you occupy or not, you would be liable for occupational rent, whether you occupy or not.
If it is, however, not possible for you to take beneficial occupation through no fault of your own, then they would potentially not be able to force you to pay occupational interest.
3. With regards ***** ***** things that was removed: You would be able to hold the previous occupant liable for the removal of those fixtures from the property. The issue is, however, that your claim is probably going to fall into the queue at the liquidator amongst the other creditors. If he is still in possession of those goods,you can take legal action to compel him to return it. Criminal steps against the previous owner can be instigated at the SAPD.
4. With regards ***** ***** fees of the transfer: Transfer cost is what the attorney charges you to transfer the property from his name to yours. That is, in other words, a fee you pay for a service. Transfer Duty is a tax. It is money that the Government levies on every property transaction that occurs in South Africa. If the property is bought for more than R 650 000, you are going to pay Transfer Duty in addition to the Transfer Costs. It is not the one or the other.
5. With regards ***** ***** Municipal Account: The account will be transferred to your name upon registration of the property. All you need is a letter from the conveyancers that confirm the registration and the municipality will do the transfer for you.
I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.