Chris Fick & Associates

article3b“If the roof doesn’t leak, the architect hasn’t been creative enough” (Frank Lloyd Wright)

Witticisms by modernist architects aside, can you sue the seller when the roof of your new dream house starts leaking shortly after purchase?

Roof leaks by their very nature often result from “latent” defects, a latent defect being one that “would not have been visible or discoverable upon inspection by the ordinary purchaser”. And in all likelihood your sale agreement contains a standard voetstoots clause in terms of which the property was sold “as is”, with the seller contracting out of all liability for latent defects.

Voetstoots and fraud don’t mix

But, as the Supreme Court of Appeal has again confirmed recently, a voetstoots clause can never protect a seller, who knows of a latent defect at the time of the sale, from intentional concealment of it made in bad faith and with the purpose of defrauding the buyer.

The buyers of a house had sued the sellers when, after their thatch roof started leaking, it emerged that the roof was structurally inadequate both in regard to support beams and in regard to the pitch of the roof.

The sellers’ “voetstoots defence” failed, the Court holding that “their fraudulent conduct in concealing the existence of the defective leaking roof forfeits the protection of the voetstoots clause in respect of this latent defect.” They were also liable as a result of having induced the buyers to buy the house (or at least to reach agreement on the sale price) by fraudulently misrepresenting to them that a guarantee issued on pre-sale repair work to the roof was still in place.

Note that a seller cannot, through “fraudulent diligence in ignorance”, deliberately avoid investigating a possible defect for fear of confirming his/her suspicion that the defect exists. Thus the sellers in this case were held to have not had an “honest belief” that the pre-sale repairs were adequate because – although told by an independent assessor that he had “reservations” in regard to the pre-sale repairs – they avoided questioning him any further about what his reservations were. In other words, they preferred to avoid having any doubt thrown on their “belief” that the repairs were adequate, which rendered it dishonest.

The end result – the sellers had “reasonable grounds to suspect that the leaks in the roof had not been fixed, and they were therefore obliged to disclose this knowledge to the [buyers]”. The Court ordered them to pay the buyers R449 499 for repair costs, plus interest and (no doubt substantial) legal costs.

Note: Both sellers and buyers need to be aware that some or all voetstoots clauses may be negated by the new buyer protections in the Consumer Protection Act – there are conflicting views on this point and we will have to wait for legal precedent to be sure.

Thatch – what’s the Perfect Pitch?

Per expert evidence before the trial court – the recommended pitch for a thatch roof is 45 degrees, whilst less than 30 degrees (as was the case in some areas of the roof in question) cannot “be regarded as functional”.

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