WEEKLY PROPERTY ISSUE - This week a first-time home buyer tells our Property Poser experts that, shortly after moving into the house, it rained and he discovered that the roof leaks.
The reader says he climbed onto the roof and, upon inspection, found that not only was it in a very poor condition but had been repaired and patched all over.
Prior to selling, the previous owner had mentioned that she had experienced minor leaking. The reader brought his own issue to her attention via the estate agent, but had no joy.
He then approached the transferring attorney who referred him to the small claims court.
The reader is unhappy with the situation: had he known about the leaking roof, he says it would have affected negotiations on the price of the property. He also feels that the estate agent is partly to blame, as he should have properly inspected the property and reported any considerable defects.
When purchasing a property, the prospective buyer has as much of a responsibility to inspect it as the agent, who must make an effort to become aware of and report any known latent and patent defects, says Pieter van Rensburg, principal of Chas Everitt in George.
"A patent defect is something that is, or should be, identifiable upon inspection of the property in a reasonable manner."
A latent defect, on the other hand, is not apparent upon an ordinary inspection by a reasonable buyer and includes faults that are not immediately obvious or are hidden from view, says Van Rensburg.
"The test is objective, what could or should have been seen on the original inspection of the property, not only what the buyer did, in fact, see."
Van Rensburg says the roof forms a substantial and important portion of the property and clearly questions had been asked and statements made, given the fact that the owner had reported some leaking.
"It is not something that would necessarily be visible upon inspection, unless there is evidence of water marks on ceilings and so on."
The question may be asked whether there was any duty on the buyer to further examine the roof after hearing that issues had been experienced, says Willem Luttig from Raubenheimers Inc in George."Should he just have accepted the seller's statement at face value? Would it not have been prudent to enquire about measures taken to fix the roof?"
The purchaser, having been alerted to potential issues, may well have been under an additional duty to inspect further, says Luttig.
"If he merely relied on the representations made to him, he could have a cause of action for reduction of the purchase price."
This, however, involves potentially time consuming and costly litigation, says Luttig. "Depending on the amounts involved, the small claims court is an option."
Luttig says the Consumer Protection Act will only provide a remedy if this particular transaction falls within its provisions.
"The Act is only applicable to transactions that are concluded in the ordinary course of the seller's business."
For example, says Luttig, a property developer sells properties in the course of his business and the sale agreements he enters into would accordingly be subject to the Act.
"On the other hand, so called once-off transactions, such as the sale by an individual of his or her home, would not."
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