Good day,I trust this message finds you ...

Asked by ChaniseN on 25-01-2021 14:20:25
Question posted in the Property Law category relating to Gauteng
Question value: R 0.00

Good day,

I trust this message finds you well.  I am hoping that someone may please assist with some legal advice or guidance as we are desperate to find an answer to our dilemma.

We bought our property in 2020 and moved in mid-September 2020 the week that the transfer was complete.  When we moved in, we only noticed the severity of the rising damp as well as water damage to the bar and the walls in the bar area – none of which was declared on the OTP.  On the night of October 31st 2020 there was a storm during which the entire bar area flooded with water streaming through the corner of the wall – not the roof but through the wall about half a metre from the floor.  The bar and the garage, which is next to the bar and also filled with damp, were built on to the house.  The rooms are on the plans provided by the seller, however, natural flow of water is blocked by these additions with no drain having been inserted to make room for the water.  The bar is also one level lower than all the other rooms.   I have gotten two professional formal investigations, reports and quotations for the damage both of which state that the damage is of a structural nature and is a longstanding problem which could not have occurred over a short period of time. 

Now, after countless emails and communications, the seller is basically denying any and all responsibility with the Conveyance Attorney stating I have no recourse at all.  I am now simply being ignored by both parties.  The Conveyance Attorney stated that our law does not place any direct obligation on a seller to disclose defects unless asked specifically and then lies about it.  The law does place a responsibility on the purchaser to do an inspection on the property prior to making an offer to purchase the property voetstoots.  I understand the latter, but two issues come to mind:

Firstly, as far as my knowledge goes, the disclosure section for damages in the OTP does serve as a direct question to the seller to declare damages to the property, that is exactly why the seller declared the damaged door of the garage, the previously existing damp in the kitchen study, the damaged carpets, the discoloration of water in hot taps, and the pool light that is not working. Thus, by not adding the damp in the bar, especially as damp was clearly an issue in the house, and the surrounding issues in the bar area, the seller was purposely hiding the problem.

Secondly, when we viewed the house, the faulty corner in the bar was hidden by furniture which we could not move around as we were not allowed to touch anything due to COVID regulations, so there was no way we could have seen damage that was hidden by large furniture. We could also not enter behind the bar for the same reasons.

So how can we not have any recourse against something that we, firstly, would not have been able to see on our visit as it was hidden by furniture and, secondly, when the problem only came to light with the first emerging storm of rain?  We are really desperate and have been sent from pillar to post with no assistance from any of the involved parties at all.  Thank you in advance for any advice given.   

Answer to the Question

Posted by Att. Patrick on 26-01-2021 10:07:17

Hi there,

I see that you haven't made a payment for the question, but I'm going to assist you a little. If you want to ask a follow-up question, please make the required payment.

The conveyancing attorneys are (you must remember) the seller's attorneys. They are there to protect the seller, so don't listen to their advice. You need to get your own legal advice from your own attorney!

I think that you are 100% on the right track in relation to the disclosure document and the damp, and I think that this is your answer. A seller can't hide behind a vootstoets clause in order to escape a damp problem which the seller knew about and which was a major issue in the house. 

I think that you need to make an appointment with an attorney who specialises in litigation and property and sue the seller for the costs of fixing the damp.

I can't refer you to a specific lawyer, but I can direct you to https://www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!

Att. Patrick 

Please remember this is a dialog if you have follow-up questions please make the required payment, then use the REPLY button and ask your further question. I would like to continue assisting you, but I need to concentrate on people who make payments for their questions.

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