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Protect against drought deterioration

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Water restrictions can make it impossible to maintain a garden or a pool properly.

All residential sales agreements in the Western Cape should include a clause that protects the seller from drought deterioration in
the gardens, pools and water-related features in the period before the new owner takes occupation.

So says Robert Krautkramer, a Milton Matsemela attorney who advises northern suburbs estate agency Alexander Swart Property on property-related matters.
Agency director Rowan Alexander says this advice will protect the seller in the period between the sale being agreed upon and/or transfer completed, and the date the new owner actually takes occupation.
The clause, which has been drafted by Krautkramer, reads: “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.”
Although the agency has yet to have a complaint on the matter, Swart says there is a “grave risk” that in the eight to 10-week average that the property is in transition stage, there can be cases where properties decline seriously.
In most cases the seller should not have been seriously negligent, but the
damage could be severe because the water restrictions can make it impossible to maintain a garden or a pool properly.
“While recognising that deterioration is a distinct possibility, 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 prior to handing over.
“This clause will not, therefore, absolve the seller of his responsibility to do his best to maintain the property – it simply recognises that with the water restrictions it may be impossible to maintain water-related features properly.”


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