In residential property transactions which have received the Estate Agency Affairs Board’s approval, many standard Offers to Purchase/Deeds of Sale contain a clause stating that the seller is not responsible for pointing out the land survey beacons of the property to the purchaser. There is in many agreements also a subsidiary clause to the effect that neither the seller nor the buyer will have any claim if such beacons have been removed or are found to have been incorrectly placed.
This clause, says Errol King, the Rawson Property Group’s franchisee for Muizenberg, is vitally important because over a period of time – sometimes over many years – it is often possible for a ‘property creep’ to take place. Without any intention of breaking the law a property owner will simply assume that a certain tract of land is part of his property and will make use of it.
In one case with which a colleague of his was involved fairly early on in his career as a property agent, the owner and his family regularly used a section of ground on a riverbank. Only when the home next door after many years was sold did it transpire, as a result of the agent carefully examining the original plan layouts, that the section along the riverbank was part of a panhandle belonging to the property next door, i.e. the one now being sold.
In this case an amicable arrangement was arrived at, allowing the new home owner to use the property but not to take ownership of it. In other cases, however, initial misunderstandings, says King, have resulted in a great deal of acrimony and often in the entire deal having to be cancelled, the price radically altered or heavy compensation paid.
At Marina da Gama, said King, one owner had ‘extended’ his plot into the water by building a small boat jetty when the erf boundary line was the water’s edge (the owner was allowed to get away with this illegal action after receiving the approval of all the adjacent property owners).
In another case it transpired, after the consulting of the original plans, that the owner of a certain property who had always owned a garage apparently on the next door property was also the owner of a small parking area there – leaving the owner of that house with no parking space at all.
There was also a case in which a neighbor took over an unused servitude lane and planted a garden on it, banking up the soil against his neighbour’s house wall. As this wall was showing signs of damp penetration, the owner of the home tried to get the situation rectified but was, in this case, thwarted because there was no means of proving that the wrongful use of the ground in question had not been going on for many years, which meant that it now had to be accepted in perpetuity.
“The lesson every estate agent has to learn early on is never to take the seller’s statements as valid – not because the seller is dishonest but because in 90% of cases he will not know that the real boundaries are different from those he has always lived with. The agent has to get hold of the original title deeds and check the boundaries for himself and there have been a number of instances in which this does lead to some surprises.”
If the agent does not do this, says King, and a mistake is subsequently detected, it is possible that under the new Consumer Protection Act, no matter what the Deed of Sale clauses might say, the agent may be held liable and responsible because the Consumer Protection Act defines him as “a member of the supply chain” and such people are expected to be thoroughly knowledgeable on their product.