Electrical compliance certificate

2.5 months is a short wait

Firstly, I have to tell you that 2 and a half months to lodge for transfer is quite a reasonable wait. Three months is seen as an average time to wait for transfer for a property where everything goes according to plan - with no lost title deeds, uncooperative parties, unforeseen debts, etc.

Speak to your own attorney

Secondly, I have to urge you to speak to your own attorney for legal advice. I am not a law practitioner, attorney or agent. I have not seen your contract of sale and I basically have three short paragraphs to explain your situation. So take my comments for what it is: The opinions of an online stranger.

Electrical certificates and transfer of ownership

So here is my take on electrical certificates of compliance and your transfer:

Not getting an electrical certificate before transfer is always bad news.

Even though your contract includes a clause requiring the seller to provide an electrical certificate, transfer can still take place without one. That is because the Deeds Registries Act and the Alienation Of Land Act does not require the electrical certificate of compliance (which is required in terms of theOccupational Health and Safety Act) to be lodged with the Registrar of Deeds before transfer of ownership can be effected.

If the seller's transferring attorney is registering the transfer, he/she works for the seller and will protect the interests of the seller. And let's face it: Paying for an electrical certificate for YOUR house is not high on the seller's list of priorities. So the property will probaly get transferred without an electrical crtificate.

This is why I always urge folks to use their own attorneys. If you have some legal muscle looking after your interests (too), then little things such as electrical certificates need not be a problem.

If the electrical certificate does not get issued before transfer, then you will have to sue the seller for it, or for the money to get one yourself - even though the contract gives you the right to expect your electrical certificate within 2 weeks of signing the contract!

And here's some more bad news: Even if you wanted to, you would not be entitled to cancel the sale, unless the contract allows you to do so, should the seller fail to comply with all the terms of your agreement. This right to cancel the sale is usually listed under the heading of "Breach of contract".

The electrical certificate clause could also be worded as a resolutive condition - having the effect of canceling the sale automatically, should the seller fail to comply. But this kind of clause is open to abuse by a seller who feels that the agreement is not beneficial to him/her anymore. All the seller has to do is not come up with an electrical certificate before the due date, and voila! - the sale is history.

You could, however, protect yourself in terms of the issuing of and electrical certificate by including wording to the effect that you would have the right to obtain an electrical certificate at the seller's expense, should he/she fail to obtain an electrical certificate before the due date. This way, you could get the electrical contractors to come and do the work, and then deduct that amount from the monies that will be paid to the seller at transfer. (The invoices and proof of payment for the work would have to be submitted to the transferring attorney.)

Real estate agents and electrical certificates

I note that you say the agent was "not helpful" in getting your electrical certificate.

In my opinion, a good real estate agent would have organised the electrical certificate of compliance on behalf of the seller. The seller committed to the electrical certificate in the agreement of sale, so I'd say it is in the seller's best interests to comply to those terms.

So, I say the agent was uninformed, incompetent, lazy, or (and probably least likely) instructed by his/her client (the seller) not to be helpful in regard to the electrical certificate.

Unfortunately, the agent is not responsible for getting the seller to comply with the terms of your agreement of sale. The agent simply has to make sure that the fundamental conditions of sale get fulfilled in order to get paid. And unless you can PROVEmisconduct, deceit, incompetence or malicious intent (and sometimes not even then) there isn't much you can do about an agent not being helpful with your electrical certificate of compliance.

And then you also have to remember that the real estate agent is usually working for the seller (as does the transferring attorney, unless you appoint your own). If the seller's interests are protected, then the real estate agent's job is almost done. The Estate Agency Affairs Board (EAAB) Rules of Conduct for Real Estate Agents says that an agent must protect the interests of the seller (if the agent has a mandate from the seller, as is usually the case in South Africa), with due regard for the interests of the buyer.

Unfortunately, "due regard" is very easily read as "no regard"...