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Ask a lawyer – Who pays for the home’s latent defects?

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Q

We sold a property and the purchaser has submitted a complaint about certain defects in the electricity and plumbing. There was a Certificate of Compliance (COC) issued but it appears that some of the electrical issues do not fall under what is required for a COC document.

The seller has signed a document stating that the stove, electrical plugs, plumbing etc. are in working order. The seller now refuses to pay for any repairs to correct the problems.

Where does the purchaser stand in this instance? Can he still hold the seller responsible?

A

  1. If there are any latent defects to the property, then the purchaser may be entitled to sue the seller for any pecuniary damages incurred as a result thereof.
  2. However, I would be weary of any potential clauses in the deed of sale that may have the effect of limiting, if not eliminating, the seller’s liability such as a “voetstootsclause, or a “no warranties or representations” clause.
  3. If these clauses are present in the deed of sale (which is likely given that they are by and large standard provisions), then in order to succeed, the purchaser would have to prove that the seller, with full knowledge of defects, intentionally and knowingly failed to make disclosure.
  4. In order to claim damages, the purchaser would first have to attend to the repairs and thereafter institute proceedings against the seller for recovery thereof.

  5. In the alternative, the purchaser may be entitled to claim a reduction in purchase price through a legal remedy known as the actio quanti minoris, which if successful, will entitle him to the difference between the actual purchase price and the purchase price that he would have paid had the defects been disclosed to him.
  6. I do, however, note that in either instance, the prospects of success will hinge on the purchaser being able to meet the requirements set out in point 4 above.

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Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a  law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

 

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