Under South African law, the transfer of property is subject to a seller – or purchaser, if otherwise agreed – obtaining various compliance certificates prior to lodgement and registration in the Deeds Registry. These certificates, which are statutorily mandated under the Regulations published in terms of the Occupational Health and Safety Act, are designed to ensure compliance with minimum safety standards. A clear exception to this legal framework, however, is the contractual requirement to obtain a beetle certificate.
Although not mandated by legislation, agreements regulating the sale of property in South Africa’s coastal regions, including the Western Cape and KwaZulu-Natal, often incorporate a clause obligating the seller to provide a certificate confirming that the property is free from timber-destroying insects, namely the wood borer beetle. Known to destroy antique furniture and compromise timber structures, this small species lay their eggs in untreated wood and consume wood and wood-based items as their primary source of sustenance. To that end, a beetle certificate is designed to protect the purchaser’s interests and provide them with peace of mind given the serious financial implications of insect infestations.
Crucially, the contractual requirement to obtain a compliance certificate is not tantamount to obtaining a pest control certificate. Depending on the wording of the agreement, the content of certificates may vary widely. For instance, the clause may be broadly constructed to cover all wood-destroying organisms, including beetles, termites, and fungi. Significantly, there are no specific legal standards that regulate the content of beetle certificates. At the very least, the inspector selected to perform the inspection must be licensed and registered with the South African Pest Control Association.
Even if the parties do not expressly include a beetle clause in the agreement, the purchaser may still be required to obtain a certificate as part of the bond approval process. Financial institutions financing the purchase of the property – secured through the registration of a mortgage bond – increasingly require the provision of a compliance certificate, which confirms that the property is beetle-free. The impetus for this is clear: Infestations can compromise a property’s timber structure and thus radically reduce its value.
Notwithstanding the inclusion of a voetstoots clause, which specifies that the property is sold ‘as is’, a seller, who is aware of a beetle infestation, and deliberately conceals this fact from the agent and or purchaser, will be liable for any damages incurred by the purchaser.
To prevent future disputes, it is highly recommended that all sale agreements in respect of properties located in coastal regions expressly include a detailed clause requiring the seller to obtain a beetle certificate from a registered inspector prior to transfer. Ideally, an inspection should be carried out prior to marketing the property to prevent unforeseen delays.
*This article was originally published on STBB’s website.
For professional legal assistance in all property-related matters, contact us at info@stbb.co.za.
