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Thread: Disputed entomology certificate

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    Disputed entomology certificate

    Hi - please can someone advise me, am at my wits end.

    We sold our house in Durban and got multiple quotes for the entomology certificate, and went with the cheapest one who was registered by SAPCA and who proceeded to issue a report and a compliance certificate - which we have sent to the conveyancing attorney.

    The buyer is unhappy with this guy's actions or lack thereof... in his opinion, the house did not need to be tented and he treated whatever infestations he found through spraying.

    I relied on his professional judgement as an accredited provider and provided a valid certificate of compliance in accordance with the offer to purchase.

    The buyer wants to procure another inspection and, if different, withold money from the purchase price to meet the quoted repair dictated by his other person.

    I am happy to support a rectification if the supplier i chose proves to be negligent, but am I liable or is the supplier???

    Really dont like being held hostage by the buyer like this also. Ive tried to read up on this, and cannot even find the entomology cert being a legal requirement to transfer the property... its a cash buyer, so no bank involvement in the issue either regarding bond approval.

    What are my rights here? Surely the potential liability here sits with the registered entomologist and not me??

    Would appreciate some advice in terms of how to respond to this buyer.

    Thanks so much,

    AMB

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by AMB57 View Post
    in his opinion, the house did not need to be tented and he treated whatever infestations he found through spraying.
    If I was your buyer, I'd be anxious hearing that news too and given the cost vs consequence in play, would also be paying for a second opinion...

    Please confirm the original finding was active infestation by Cryptotermes brevis (or advise if something else)?
    Where was it found?
    What pesticide product was sprayed, and exactly how was it applied?

    Quote Originally Posted by AMB57 View Post
    The buyer wants to procure another inspection and, if different, withold money from the purchase price to meet the quoted repair dictated by his other person.

    I am happy to support a rectification if the supplier i chose proves to be negligent, but am I liable or is the supplier???
    As minimum, the law of contract applies. The purchaser is contracted with you, and in turn you are contracted with the supplier. You can claim any damages you incur arising from the negligence of your supplier...

    A relatively quick and simple solution - If the buyer procures the services of another SAPCA accredited inspector and the result differs from your service provider, the matter can be referred to SAPCA for dispute resolution.
    The trouble with opportunity is it normally comes dressed up as work.

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    Dave thank you for your reply.

    The legal position is where i seek clarity. The purchaser contracted with me, yes, and what has happened is that a registered Entomologist inspected the property and issued compliance. That is the requirement of our sales contract which i believe i have fulfilled. My point is that this compliance system places the burden on me to ensure i am dealing with someone credible (by way of accreditation with SAPCA) and make sure a valid certificate is provided (which it was) - ie i have met my contractual burden. I am not an expert in his treatment or competence and do not believe that I am required to be?

    I would be happy for this to go to SAPCA for dispute resolution... but if they were to find that the entomologist were negligent, what would they then do? Make me as seller bear the burden and cost of finding another entomologist (and seek my own legal redress against this one) or make negligent entomologist responsible for rectification? I am more than happy to for a dodgy entomologist to get what he deserves (ie make him tent the place or comply with the other recommendations) - but having left the country now, i am not in a position to sue etc. In fact I personally have no cause for complaint myself, clearly - and would not be the person lodging it at SAPCA anyway.

    I hate relying on legal formality, but might have to do so here. Having met the prima facie contractual obligation, i am trying to see on what basis transfer can be suspended over this issue. Am not suggesting there is no potential cause of action over this compliance certificate, but my position is that this is something they should take up with him and SAPCA when the property is theirs - rather than it be my legal liability now in the process.

    Would be interested in your further thoughts, and might shoot SAPCA a query over process here as well. It would be my fault if i procured some fraudulent or unaccredited compliance and tried to pass it off, but i never did that - just as with the electrical compliance, the gas compliance and the fence compliance I got a number of quotes, made sure the lowest was accredited and relied on their judgement and certification when issued. If a buyer had issues with validly issued electrical compliance over a light fitting or something, could they really stymie the transfer of the property because they dont like or agree with the valid compliance issued??

    AMB

    On further reading,



    I have left the country and really cannot get into a legal case against the entomologist.

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    Site Caretaker Dave A's Avatar
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    Assuming for a moment that your supplier erred, may I gently point out that had the original requirement have been fumigation from the outset you would have been in for the cost of a fumigation anyway.

    That said, while I was on the Board the view was that if a member "took a chance" by using inappropriate remedies, they should be held responsible for the financial consequences as the most suitable incentive to act correctly in the first place. However, the arguments can be complex; typically there's a lot of fine print and self-interest argument to navigate, and then there's always the challenge of enforcement.

    Quote Originally Posted by AMB57 View Post
    I hate relying on legal formality, but might have to do so here. Having met the prima facie contractual obligation, i am trying to see on what basis transfer can be suspended over this issue.
    In brief, once evidence of the presence of infestation has been established:

    The contractual obligation typically is that the infestation be dealt with appropriately at the cost of the seller.
    There are standards and standard industry practices that determine what is appropriate.
    Deviation from those standards means the purchaser may not have received what they're entitled to and the seller has failed in their obligation (be it intentionally or unintentionally) - particularly if it is found that there is still infestation present.

    Note also that the purchaser is not demanding suspension of transfer until the matter is fully resolved, but requiring only that a sum is held back in trust while the issue is clarified and finalised.

    In closing for this post - put yourself in the purchaser's shoes for a moment. What would you do?
    The trouble with opportunity is it normally comes dressed up as work.

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    Hi Dave, i can totally understand where the purchaser is coming from - but I spent over 20k with this supplier to treat according to his professionally accredited judgement, and now am being asked to be liable for an entirely new job. Its not like i got the original job for free!

    I really dont know how a compliance system can work is if a seller cannot rely on an accredited supplier's valid certification in good faith.

    Since you have been on the Board, your perspective is extremely interesting and credible to me. Indeed i have no idea how one would enforce any kind of ruling you set down, but presume SAPCA have some kind of authority to de-register someone who has failed to meet industry standards and refused to rectify? That should be a strong incentive for them to comply with any ruling as otherwise they lose their certification.

    I do believe the buyer and I are better off acting on the same team and asking SAPCA to decide and hold the member responsible if applicable (and I have no idea if it is applicable or not, and how could i expect to be?). But as soon as it becomes a monetary issue between ourselves, it of course leads down the road to legally interpreting the relevant clause in the OTP and getting legal advice - so am not sure how that can proceed alongside a transfer in practical terms.

    But I really appreciate your perspective. If approaching SAPCA is the proposal we can settle on, would one do so by lodging a complaint on their website or making more direct contact?

    Many thanks - Amrit

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    Site Caretaker Dave A's Avatar
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    Hi Amrit,

    For R20k, you must have got a lot of spraying!

    In terms of process -

    There will need to be a second report (from a SAPCA accredited inspector please) that indicates there is still a problem. It seems your purchaser is willing to get a second opinion, so let the purchaser do that.

    Then refer both documents to SAPCA.
    It is often useful to give provide a copy of the entomological clearance clause in the sales agreement (there can be subtle, but relevant variations) and some sort of outline of events leading to the dispute.
    Plus contact details.

    From there it'll be referred to a local person or committee to review. I won't get into likely process as it is dependant on the facts of the matter.

    Quote Originally Posted by AMB57 View Post
    but presume SAPCA have some kind of authority to de-register someone who has failed to meet industry standards and refused to rectify? That should be a strong incentive for them to comply with any ruling as otherwise they lose their certification.
    SAPCA's influence in this is heavily dependant on the consumer's conscious decision to use SAPCA accredited inspectors for the task. To achieve this support, obviously SAPCA must ensure there is value in the decision - such as assisting resolve unfortunate situations like yours

    Entomologist Certificate Durban
    Last edited by Dave A; 28-Oct-16 at 04:13 PM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Dave I want to sincerely thank you for your responses here. I have put it to the buyer that he can get a second opinion and use that as evidence towards a complaint lodged with SAPCA who can be trusted to act independently and reasonably. I think that is a fair and reasonable way forward. What a schemozzle, certainly the last thing i need on my plate as we grapple with setting up life in another country. I really appreciate your engagement, its been incredibly helpful. AMB

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    Site Caretaker Dave A's Avatar
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    I sincerely hopes it works out fairly for all parties as it should, Amrit.

    My best wishes.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member Marq's Avatar
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    Cheapest quote = 20k - for a bug report?
    Dave - What is the average cost of a report these days?
    Sounds hugely excessive.
    The cost of living hasn't affected its popularity.
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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Marq View Post
    Dave - What is the average cost of a report these days?
    For a house in Durban? I'd guess you can expect quotes in the R500 to R1000 range for a standard WDI inspection and report, Marq. Amrit does talk about total spend though and we don't have any detail as to what that might include.
    The trouble with opportunity is it normally comes dressed up as work.

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