Good Day , I trust this mail finds you w...

Asked by Marius on 29-07-2021 16:18:56
Question posted in the Property Law category relating to Gauteng

Good Day , I trust this mail finds you well?

I have paid two month's occupancy rent in full = R15000 *2 = R30000. This is part of the process to purchase a brand new property  built recently. We were furnished with a occupation certificate, yet when we started to use the showers they were leaking through the concrete from the first floor to the bottom floor. We have not been compensated financially during the the time the repairs took place, nor have the repairs been done properly. The water is still standing on the floor in the one shower, meaning it doesn't drain properly. It's very painfull/ distressing to deal with this " Bully" contractor. 

We would prefer to have financial compansation for the inconvenience and further compensation to undertake the proper repair of the second shower myself. I intend to abstain this comming month end's occuancy rent of R15000.

The transfer attorney is not interested to help or mediate. Clearly the contractor uses them regularly and mediating to our financial benefit would damage any future developments transfer income.

I would like to know if there's still a small claims court that I can present photo's and other evedince before a Commissioner that would be able to decide if we are due a maximum claim of R20000 discount on occupancy rent.

Then I would like to make another claim in the small claims court for the repair cost of the shower and poor plastering that took place inside the house as a separate claim.

Kind Regards

Information Requested by Lawyer

Posted by Att. Patrick on 29-07-2021 16:27:18

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Information Requested by Lawyer

Posted by Att. Patrick on 29-07-2021 16:30:14

I'm sorry to hear that you are having issues with defects at your newly constructed property.

I don't think that you will get any luck with the transferring attorney because his job is to represent the developer of the property and to transfer the property into your name. He is not going to get involved in a bnuilding dispute. 

Did you purchase the property directly from the developer, or did you buy the erf and then enter into a building contract with the developer in terms whereof he builds you a house?

Information Requested by Lawyer

Posted by Att. Patrick on 29-07-2021 16:31:28

The issuing of an occupation certificate does not certify that the property is 100% perfect. It merely means that the property is safe to occupy, in accordance with the regulations.

There could be leaks in the property or other defects. Those defects do not stop the issuing of an occupation certificate.

Information Requested by Lawyer

Posted by Att. Patrick on 29-07-2021 16:36:47

If you entered into a building agreement with the developer in terms whereof he built the house for you, then your building agreement should make provision for a list of snags / defects to be drawn up, and then for the builder to attend to all of these snags / defects. It is part of the building agreement. What would be required is for you to read the building agreement to find this section, and then to follow the section, and draw up the list and submit it to the builder. The builder must then fix the snags. You, unfortunately, can't demand compensation so that you can fix it yourself.

If this is a completely new house (not a renovation), then the National Home Builders Registration Council (NHBRC) may be able to help. All new houses must, by law, be enrolled with the NHBRC and the NHBRC has a variety of warranties to protect new homeowners.  This includes a one-year warranty on the roof and a five-year structural warranty.

If the house has been renovated and purchased from a developer, or from a property professional, then the Consumer Protection Commission (CPC) is available to conduct a reconciliation and arbitration process on your behalf.  This process will not cost you anything. Contact the CPC on 0860 266 786 or ncc <at> thedti.gov.za. The CPC is there to enforce the Consumer Protection Act on behalf of consumers.  

If, on the other hand, you bought the house from a private seller (who does not sell property in the normal course of business), or if the house was not brand new then, unfortunately, neither the NHBRC or the CPC can help you. In this case, and if you suspect that the seller hid the leaking issue, you still how have common law protection through the small claims courts - for example. However, the onus will be on you to prove, to the satisfaction of the court, that the seller deliberately concealed what would otherwise have been a “patent” (visible) defect. This is difficult to prove and legal action is also very expensive, stressful and time-consuming.

Information provided by client

This is a brand new property built by a developer. We saw the sales add after the house was completed and decided to purchase the property.

Surely I am due compensation / discount on the rent in light of the repairs that needed to be done?

Information provided by client

I would like to know if there's still a small claims court that I can present photo's and other evidence before a Commissioner that would be able to decide if we are due a maximum claim of R20000 discount on occupancy rent.

Then I would like to make another claim in the small claims court for the repair cost of the shower and poor plastering that took place inside the house as a separate claim.

Answer to the Question

Posted by Att. Patrick on 29-07-2021 17:11:39

Q: Surely I am due compensation / discount on the rent in light of the repairs that needed to be done? --> You would only be entitled to withhold the occupational rental if you were not living there, or the damages were such that you couldn't actually occupy the property. In your situation, you are living there. You therefore need to pay the occupational rental.

Like I said above, I don't know if the small claims' court is necessarily your best bet, because you might be able to hold the developer liable in terms of your building agreement (i.e. snags) or perhaps the NHBRC, or even the CPC.

I'm still not 100% clear on the actual agreement entered into between you and the developer.

Information provided by client

Hi Patrick thank you very much for the answers thus far, much appreciated!
Not sure how to clarify your understanding:- brand new property that the registration is dragging it's heels. There's no NHBRC certificate for the property as this doggy developer has somehow bypassed this requirement.
So now we are living in the property compromised, with privacy intrusion, having to deal with this developer to repair the showers and the more they come to the house the more they are making more problems. Something was even stolen out of the garage. There's no end in site to the registration either

Patrick the showers and the bath were leaking through the first floor concrete floor. This maid it impossible for us to use the showers and the bath as it would potentially caused more damage yet we were paying for the use of these bathrooms. That's not right. If you can't use something why must I pay for the use of that? If I rent a car and the car can't drive then I should not be paying rent for the car or for the use of the showers and bath. If I am living in the duet and you come in and do work you are inconveniencing me. This cannot be right. I must be compensated or you should have provide me with alternative accommodation with working showers. The rental car is running now but we are giving it to you without a spare tyre.
Not sure if this comparison is worth something just trying to understand my writes, please don't take any offence if I possibly come across incorrectly.

Can I possibly call you to discuss? It's very difficult to discuss and misinterpretation potential on this site.

Answer to the Question

Posted by Att. Patrick on 30-07-2021 09:34:37

Q: If you can't use something why must I pay for the use of that? --> The problem is apportioning what part of the occupational rental to the showers/bath. That's the issue. 

Q: If I rent a car and the car can't drive then I should not be paying rent for the car --> Surely the example is more like if you rent a car and the radio does work then should you be paying anything for the car.

The developer MUST register the property with the NHBRC. This is a legal requirement. You can contact the NHBRC to complain. The issues that you are having now is EXACTLY the reason why the NHBRC exists!

Q: I must be compensated or you should have provide me with alternative accommodation with working showers. --> Then maybe you adopt the attitude of, "I'm moving out because I can't live there with broken showers/bath, and I'm not paying occupational rental."  But then you've got to move out - which you won't want to do.

Otherwise, you'll need to bite the bullet (right or wrong) and just refuse to pay occupational rental until the issues are sorted out, and then let the developer fight you on that point. It might delay the registration of the property though - that's my concern. 

Or, hire your own plumber to come and sort out the issue and then set the costs off against the occupational rental? But that will end in a fight as well.

Q: Can I possibly call you to discuss? --> We unfortunately don't offer a call service.

I still think that this is your best bet: "If this is a completely new house (not a renovation), then the National Home Builders Registration Council (NHBRC) may be able to help. All new houses must, by law, be enrolled with the NHBRC and the NHBRC has a variety of warranties to protect new homeowners.  This includes a one-year warranty on the roof and a five-year structural warranty."

i.e. a complaint to the NHBRC

Answer Accepted

This answer was accepted on 30-07-2021 10:17:37

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