Compliance Certificates | What you need to know

• South Africa

• Real estate

29-09-2020

When selling your house there are various compliance certificates which you are required to obtain. These include an electrical compliance certificate, an entomologist/beetle/pest clearance certificate, a gas conformity certificate, and an electric fence compliance certificate.

The requirements for electrical compliance, gas conformity, and electric fence compliance certificates are legal requirements as prescribed by law and, should there be non-compliance, penalties may be imposed by the relevant authority. The position, however, is different for an entomologist clearance certificate. This certificate is not a legal requirement but rather a standard practice, especially if the property is situated in the coastal regions. If the buyer is securing the full purchase price or any part of the purchase price by a mortgage bond, the banks often approve the buyer’s loan on condition that an entomologist clearance certificate is obtained to ensure that the property is compliant for their security purposes. A brief summary of each of these compliance certificates is discussed hereunder.

Electrical Compliance Certificate:

The requirements for an electrical compliance certificate are governed by the Regulations of the Occupational Health and Safety Act No. 85 of 1993 as amended (‘Occupational Health and Safety Act’). The Regulations provide that each “user” or “lessor” must be in possession of a valid electrical compliance certificate. Although the Regulations refer to “user” and “lessor” and not specifically “owner”, this is interpreted to include the owner of the electrical installation who is the owner of the property. The Regulations set out several general requirements which include, amongst others, that only a registered electrical contractor may perform the electrical inspection, repairs and issue the compliance certificate.

In respect of property transfers, the Regulations prescribe that it is obligatory to obtain an electrical compliance certificate where ownership passes from one to another. However, where there is a valid certificate in place that is:

1. not older than 2 years; and

2. there were no alterations to the installation since the issue of the current certificate,

a new certificate is NOT required for purposes of transfer. The seller can then rely on the validity of the current certificate and provide this to the buyer.

Notwithstanding this, the seller and buyer may agree that a new certificate be obtained. Although the onus is on the seller to obtain an electrical compliance certificate, this obligation may shift to the buyer by way of agreement.

An electrical compliance certificate will cover the distribution boards, wiring, and earthing and bonding of all metal components, which include antennas and satellite dishes. It will also cover the socket outlets, light switches, and all isolators for fixed appliances. It may exclude certain fixed appliances such as the geyser, stove, fans or underfloor heating appliances. The seller must ensure that the company carrying out the electrical compliance includes the inspection and repairs (if any) to these fixed appliances.

Entomologist/Beetle/Pest Clearance Certificate:

Properties situated in the coastal regions are exposed to wood-destroying and other notifiable beetles/pests. Usually, the relevant clause in the sale agreement will refer to all wood-destroying beetles in general rather than any specific type of beetles/pests. This is to ensure that the certificate obtained includes confirmation that no wood-destroying beetles/pests of any nature were found on the premises.

The seller and buyer may contractually exclude this requirement. However, if the parties agree that no entomologist clearance certificate is required and the buyer’s bank requires it for the buyer’s mortgage bond, then it will need to be provided at the buyer’s expense.

Only a qualified entomologist who is a certified member of the South African Pest Control Association (S.A.P.C.A) can issue a clearance certificate, which is usually valid for three to six months from date of inspection.

Gas Conformity Certificate:

Since 1st October 2009, it is a requirement that any person installing a liquid gas appliance at their property must have a certificate of conformity. This was promulgated in terms of the Pressure Equipment Regulations under the Occupational Health and Safety Act. The purpose of these Regulations is to ensure the compliance of all gas installations with electrical installations.

The certificate may only be issued by an authorized person, registered as such with the Liquified Petroleum Gas Safety Association of Southern Africa, after such person has inspected the installation and is satisfied that it is safe and does not pose any threat of leakage. He/she will also certify that the emergency shut-off valves have been installed in the correct positions. For the gas components to pass inspection, they must be correctly positioned in relation to electrical points and outside cylinders must be placed within the required distance from doors, drains, windows, and electrical appliances.

Gas installations for which certificates of conformity are required include built-in gas fires or braais, gas stoves, hot water systems and the like. The certificate is required after any installation, alteration, modification or change of ownership of the property. The parties cannot contractually exclude this requirement as it is required for all properties with a gas installation.

Electric Fence Compliance Certificate:

The requirement of this certificate is governed by the Electrical Machinery Regulations promulgated in terms of the Occupational Health and Safety Act. The main purpose is to ensure that the installation is safe.

A certificate is required in the following instances where:

•  There is a change in ownership of the property after 1st October 2012; or
•  There is no change in ownership however, there has been an alteration or modification to the electric fence after 1st October 2012, even if it was installed before 1st October 2012.

Legislation does not confirm the validity period of the certificate once issued but general practice dictates that this certificate is valid for 2 years. It can be transferred from one homeowner to the next, provided that the sale agreement does not specify the validity period of such certificate and there were no alterations to the installation after the certificate was issued.

Electric fences of sectional title properties are situated on the common property which is deemed to be the property of the body corporate. Every homeowner is also a member of the body corporate and therefore also an undivided part-share owner in the common property. It is adequate for the body corporate to have a compliance certificate issued for the electric fence of the entire scheme which can be produced as and when required. The body corporate must obtain a new certificate every time there are alterations made, but it would not be necessary to have a new certificate issued every time there is a transfer of ownership within the scheme.

Conclusion:

It is recommended that all sellers do a thorough inspection at the property listing stage so that they are aware of all the repairs and/or treatments that are required.

Should the buyer experience any issues when he/she moves into the property regarding these certificates, there are a few remedies available. In addition to the buyer’s right to approach an independent legal practitioner for advice, the buyer may contact the respective company that issued the compliance certificate. The company has a legal duty to stand by their compliance certification and will be required to examine any issues that may subsequently arise.

The buyer may also contact an independent specialist to compile a report on the issues being experienced. This report may be passed on to the seller directly or through the transferring attorney or estate agent with the view to an amicable resolution. The buyer will be liable for the costs of such independent assessment.

In all instances, it is suggested that the buyer act swiftly upon discovering these issues. A delay in acting could prejudice the buyer’s prospects of success. The buyer should not make any alterations or renovations until all disputes are resolved.