Cape home sellers need protection from the effects of current strict water restrictions

From now on all agreements on residential sales in the Western Cape should include a clause that protects sellers from any deterioration in gardens, pools and water features caused by the current drought between the time that the sale is agreed on and/or transfer completed and the date the new owners take occupation.

This is according to Robert Krautkramer, a Milton Matsemela attorney who has regularly advised the northern suburbs estate agency, Alexander Swart Property, on property-related matters.

Rowan Alexander, director of Alexander Swart Property, says the agency had so far not had any serious complaints on this matter.

However, he believes there is a grave risk that in the eight to 12 weeks between sale and transfer taking place, there can be cases where properties can decline seriously. In most cases, he says, the seller would not have been deliberately negligent but the damage could be severe because the current water restrictions can make it impossible to properly maintain a garden or a pool.

“While recognising that deterioration is a distinct possibility,” he says, “it also has to be recognised that South African law does not condone any decline in outdoor features after the sale agreement has been signed but before handing over.”

Krautkramer has recommended that Alexander Swart insert the following clause in its sales agreements:

“The purchaser acknowledges and accepts that, notwithstanding the seller’s duty to maintain the property in the same condition as when the offer was accepted pending the passing of risk, that due to water restrictions imposed by the municipal authority, the swimming pool, garden and all water dependent features (if any) will on date of registration of transfer, not necessarily be in the same condition as when purchased and hereby waives any claims against the seller in this regard for as long as these restrictions apply. Any deterioration of these features due to the current water restrictions shall be deemed to be fair wear and tear.”

“This clause will not absolve sellers of the responsibility to do their best to maintain the property – it simply recognises that with the current water restrictions it may be impossible to maintain water-related features properly. However, sellers are not permitted to just let go – they must do their best in the circumstances,” says Alexander.