Page 20 - Nexia SAB&T Property & Tax Guide 2022

SALE AND PURCHASE OF IMMOVABLE PROPERTY
◆ Where the supplier is a seller of property (who sells property as his/her ordinary course
of business), and the purchaser is an individual or a juristic body whose turnover or
asset value is less than R2 million, the Act will have application.
◆ The basic test is whether the consumer purchases the property from the supplier in the
course of the latter’s “ordinary course of business”. This means that it is unlikely that
the CPA will apply to property sales in the average “one-off” private sale situation – it is
aimed more at “commercial” sales – by property developers, builders, speculators, and
other property dealers, extending to transactions where people buy and sell property
on a continuous basis. In such cases, the deed of sale and actual transfer of property
into the name of the purchaser would fall under the provisions of the CPA (where the
purchaser qualifies as a consumer in terms of the Act).
Definition of “goods” includes a legal interest in land or other immovable property:
◆ The definition of “goods” in the CPA is defined to include a legal interest in land or
any other immovable property, other than an interest that falls within the definition of
“services”. In other words, the definition of “goods” includes the sale and purchase of
immovable property. Note: whether the CPA applies to a once off sale of residential
property has not yet been tested in our Courts, as it will depend on who is selling the
property, and whether such seller falls within the definition of supplier in terms of the Act.
REMEDIES FOR CONSUMERS (AS PURCHASERS) PROVIDED BY THE ACT:
Right to fair and honest dealing with consumers – Sections 40–42, 44
The CPA deals with unconscionable conduct, false, misleading or deceptive representations
(whether by word or conduct), fraudulent schemes or offers, and the consumers right to
assume a supplier is entitled to sell goods. Consumers (purchasers) are entitled to fair and
reasonable marketing. “Market” is defined in the CPA as the “promotion and supply of any
goods or services”. All negotiations and representations made by sellers, estate agents,
property developers, builders and other property dealers – to purchasers, must comply with
the Act, so as to ensure that purchasers are treated lawfully and fairly.
Cooling off period – Section 16
Consumers are afforded a period of five business days to rescind a transaction resulting
from any direct marketing without reason or penalty, by notice to the supplier in writing.
Direct marketing includes telephone calls, electronic communications and cold calling – as
opposed to ordinary marketing-which involves printed brochures, print media and websites.
This section may have the effect of allowing a cooling-off period when a property is purchased
due to direct marketing, even if it is sold for more than R250 000 (i.e this cooling off right
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