\u201cThere is no sound more peaceful than rain on the roof, if you’re safe asleep in someone else’s house.\u201d (Anne Tyler)<\/p>\n
You move into your new dream home, excited and happy. Until it rains, and the roof leaks. As the repair teams tramp around on your roof and the bills start piling up whilst you weave around buckets and tarpaulins and sodden carpets, you go back to the seller and demand recompense.<\/p>\n
\u201cSorry\u201d, says the seller, \u201cread the sale agreement. I sold the property \u201cvoetstoots<\/em>\u201d and without liability for any defects. I sympathise, but it\u2019s actually your problem not mine. Good luck, and goodbye.\u201d<\/p>\n Can that be correct? Let\u2019s address that question with reference to a recent Supreme Court of Appeal (SCA) decision over a flooded-out guest house.<\/p>\n To understand that outcome, let\u2019s take a look at our law\u2019s requirements for such a claim to succeed.<\/p>\n As a buyer claiming damages on the basis of \u201cfraudulent non-disclosure in respect of latent defects\u201d (we deal with the alternative of an \u201cimplied warranty\u201d claim below), you will, as the Court set it out, have to prove that \u2013<\/p>\n The buyers in this case had, before buying, noticed water staining in several places. The seller had assured them that although he knew of one roof leak, it had been fixed by his handyman and that he didn\u2019t believe leaks would reoccur.<\/p>\n The Court however preferred the conclusion by an expert witness (a civil engineer) that \u201cany claim by the previous owner that no problems with roof leaks were experienced in the past [would] simply be impossible and untruthful\u201d. The roof, said the engineer, was defective both in respect of inferior design (\u201cthe entire roof speaks of negligent design, inferior workmanship and bad maintenance\u201d) and inferior workmanship (\u201cit is evident that [the builder] of the roof was not a skilled artisan \u2026 the roof under investigation was prone to leak from the day that it was built.\u201d The engineer also found evidence of past efforts to seal the roof and believed that the problem had escalated over time.<\/p>\n The Court\u2019s conclusion \u2013 the seller had fraudulently misrepresented the true condition of the roof and had failed to disclose it to the buyers. \u201cOn the probabilities, the only reasonable inference to be drawn \u2026. is that the non-disclosures and misrepresentation were made deliberately in order to induce the sale of the guesthouse, and this constituted fraud.\u201d Hence its confirmation of the damages award to the buyers.<\/p>\n The buyer in this case sued on the basis of \u201cdelictual liability\u201d which requires you to prove a list of factors, including both wrongfulness and fault. Fortunately, you also have an alternative avenue available to you. Our law is that a seller (of anything) automatically gives the buyer an \u201cimplied warranty\u201d that the thing sold has no latent defects. Prove that the seller has breached that warranty and you have the basis of a claim.<\/p>\n You are very likely, however, to come up against the seller protections in a\u00a0voetstoots\u00a0<\/em>clause<\/strong>\u00a0(common in sale agreements). That clause transfers the risk of latent defects to the buyer by providing that the property is sold \u201cas is\u201d and without any warranty.<\/p>\n To defeat the seller\u2019s protection under\u00a0voetstoots<\/em>\u00a0you can either \u2013<\/p>\n Sellers:\u00a0<\/strong>Disclose all possible defects of which you are aware in the \u201cmandatory disclosure form\u201d which, since February 2022, must be attached to and form part of the sale agreement.<\/p>\n Buyers:<\/strong>\u00a0Inspect the property thoroughly before putting pen to paper – you cannot complain about any patent (\u201cobvious on reasonable inspection\u201d) defects that you should have seen yourself. To cover yourself against any latent defects, get expert reports in any doubt.<\/p>\n Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.<\/p>\n \u00a9 LawDotNews<\/p>\n","protected":false},"excerpt":{"rendered":" \u201cThere is no sound more peaceful than rain on the roof, if you’re safe asleep in someone else’s house.\u201d (Anne Tyler) You move into your new dream home, excited and happy. Until it rains, and the roof leaks. As the repair teams tramp around on your roof and the bills start piling up whilst you […]<\/p>\n","protected":false},"author":101014,"featured_media":7387,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[6],"tags":[],"class_list":["post-7386","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-property"],"yoast_head":"\nA leaking roof puts a real damper on a guest house dream<\/h6>\n
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Fraudulent non-disclosure of latent defects \u2013 3 things you must prove<\/h6>\n
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Another way to claim: Breach of the \u201cimplied warranty\u201d<\/h6>\n
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