Housing Consumers Protection Measures Act, 1998 (Act No. 95 of 1998)

Chapter III : Protection of Housing Consumers

13. Conclusion of agreements and implied terms
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1)A home builder shall ensure that the agreement concluded between the home builder and a housing consumer for the construction or sale of a home by that home builder-
a)shall be in writing and signed by the parties;
b)shall set out all material terms, including the financial obligations of the housing consumer; and
c)shall have attached to the written agreement as annexures, the specifications pertaining to materials to be used in construction of the home and the plans reflecting the dimensions and measurements of the home, as approved by the local government body: Provided that provision may be made for amendments to the plans as required by the local government body.

 

2)The agreement between a home builder and a housing consumer for the construction or sale of a home shall be deemed to include warranties enforceable by the housing consumer against the home builder in any court, that-
a)the home, depending on whether it has been constructed or is to be constructed-
i)is or shall be constructed in a workmanlike manner;
ii)is or shall be fit for habitation; and
iii)is or shall be constructed in accordance with-
aa)the NHBRC Technical Requirements to the extent applicable to the home at the date of enrolment of the home with the Council; and
bb)the terms, plans and specifications of the agreement concluded with the housing consumer as contemplated in subsection (1);
b)the home builder shall-
i)subject to the limitations and exclusions that may be prescribed by the Minister, at the cost of the home builder and upon demand by the housing consumer, rectify major structural, defects in the home caused by the non-compliance with the NHBRC Technical Requirements and occurring within a period which shall be set out in the agreement and which shall not be less than five years as from the occupation date and notified to the home builder by the housing consumer within that period;
ii)rectify non compliance with or deviation from the terms plans and specifications of the agreement or any deficiency related to design workmanship or material notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than three months as from the occupation date; and
iii)repair roof leaks attributable to workmanship, design or materials occurring and notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than 12 months as from the occupation date.

 

3)The failure to comply with a provision of subsection (1)(a) and (c) shall not render an agreement referred to in that subsection invalid.

 

4)Where a housing consumer has sold or disposed of a home to another housing consumer within the period contemplated in subsection (2)(b)(i), the housing consumer having sold or disposed of the home shall be deemed to have ceded his or her rights under subsection (2) to such subsequent housing consumer.

 

5)Subsection (4) shall also apply to any subsequent sale or disposal during the period contemplated in subsection (2)(b)(i).

 

6)Any provision in an agreement contemplated in subsection (1) that excludes or waives any provision of this section shall be null and void.

 

7)A home builder may not-
a)demand or receive from a housing consumer any deposit for the construction or sale of a home unless an agreement between the home builder and the housing consumer has been concluded in terms of subsections (1) and (2); and
b)receive any other consideration unless the provisions of section 14(1) or (2), as the case may be, have been complied with.

 

8)A housing consumer or a home builder may refer a complaint in respect of this section to the Council, who shall investigate such complaints in terms of the prescribed procedures and any agreement contemplated in section 5(4)(c).