A helpful article for security conscious homeowners was sent out in the latest newsletter by Mosdell, Pama & Cox, the law firm in Pledge Square. I re-post it here:
The use of electrical fencing as a means to secure fixed property, and in particular also residential property, has escalated dramatically over the last few years. To address this increasing demand the market has been flooded by suppliers offering electrical fence installation services. Understandably the necessity to regulate safety issues in respect of these installations has led to the promulgation of the Electrical Machinery Regulations in terms of the Occupational Health and Safety Act which regulate electrical fencing and its certification.
What implications do the Regulations have for electrical fences?
The Regulations stipulate that all electric fences installed after 1 October 2012 must be certified and have an electric fence system certificate of compliance. It also applies to electric fences that have been altered, added to or where ownership of the premises changed after 1 October 2012.
What effect does the Regulations have on the transfer of property?
The Regulations stipulate that where there is a change of ownership of the premises on which the electric fence exists after 1 October 2012, the user must obtain an electric fence certificate.
This means that a homeowner whose installation was done prior to 1 October 2012 is not required to obtain such a certificate, but that such a certificate will be required by the user if the property is transferred after 1 October 2012 and the user wishes to utilise the system.
It is not stipulated which party (buyer or seller) is responsible for the certificate and it is up to the parties to negotiate the matter of certification as well as the cost thereof. In practice it often occurs that this obligation falls to the seller in the same way as with electrical and gas certification. However, the Occupational Health and Safety Act does allow this undertaking to be transferred and a clause can be included in the sale agreement which relieves the seller of his responsibility to obtain certification and places an obligation on the purchaser to ensure that the system is certified as compliant at the cost of the purchaser. This may particularly be relevant where the seller is exempted from obtaining a certificate and that responsibility falls to the purchaser who wishes to use the electric fence.
Additionally, if a certificate has been obtained, a new certificate may be required if there has been subsequent alterations or additions to the system. Accordingly, when property is sold it would be wise to add a clause in the sale agreement that states that there have been no additions or alterations to the system (if this is in fact the case), allowing the existing certification to remain valid.
Is your electric fence certificate transferrable and for how long is it valid?
The certificate is transferable from one owner to the next. Once it has been issued there is no need for another one. Unlike the electrical compliance certificate which is only valid for two years, the electric fence certificate does not expire, unless additions or alterations have been done to the electric fence after the certificate has been issued, in which case a new certificate is required.
From the above it is clear that electrical fencing certification, particularly when dealing with the transfer of property, is vitally important. Additionally it is also clear that the responsibility for obtaining the certification and cost thereof is a negotiable item which can be addressed in the sale agreement.
Discuss the certification of the electrical fence with your estate agent or legal advisor and ensure that this responsibility is addressed beforehand where possible.