We’ve all heard the stories — new owners of a home move in and soon discover that the sellers had done some serious “papering over the cracks” just before selling.

You’d think you’d be able to go after them for financial compensation, but without solid evidence that the sellers were aware of the defect and purposely failed to inform the buyers you’d be wasting your time and money…

In other words, you need proof of an element of fraud in the seller’s actions. Happily for Buyer Moolman – who took action against the sellers of her Johannesburg home after patched up damp made its presence visible soon after the sale agreement was signed – that proof came in the form of repair receipts.

A drum of paint and 24kg of Polyfilla were bought to to repair cosmetic damage caused by damp, by a contractor who was paid by the sellers Jan Nis and Katja Gortzen. In 2021, the Roodepoort magistrate’s court upheld Moolman’s claim in respect of the damp issue and directed the Gortzens to pay her R244,855, plus interest, as well as the cost of the suit.

Unhappy with that, the sellers – with separate legal representation and differing reasons – appealed against the ruling, and that’s how the case came to be rehashed in the Johannesburg high court last month.On February 28, the appeal was dismissed with costs by the acting Judge Isabel Goodman.

It emerged the Gortzens had jointly acquired the property during their marriage, and in March 2013, after the relationship soured, Jan Nis moved out and the couple later divorced, agreeing to sell the property as part of their divorce settlement. Katja Gortzen, who continued to live in the house, contracted Limbika Coatings & Finishes in early September2013 to patch and refill cracks and marks in the paintwork, an the property was put on show for the sale shortly afterwards.

Moolman made an offer to purchase it in October 2013. The sale agreement, signed by the parties in early November of that year, contained a voetstoets clause and the customary defects disclosure form which included this paragraph: “The seller further confirms… that there are no latent defects in any of the following items unless likewise disclosed by placing a cross in the relevant blocks.” None of the items in the disclosure list was marked with a cross, including “dampness in walls/floors”.

Transfer was finalised in late February 2014, and Moolman was given the keys to the property shortly afterwards. That’s when she discovered the damp. In the magistrate’s court case that followed, the court found that, on a balance of probabilities, Gortzen had known of the damp and had deliberately concealed it during the sale.

Limbika’s work on the property was described in the appeal case as “relatively extensive”, as 24kg of Polyfilla would suggest.

How are damages in such latent defect cases calculated? The amount is the difference between what buyers paid for the property and what they would have paid had they been aware of the problem – in this case, the damp.

For such a claim to succeed, buyers have to prove not only that the a defect was intentionally concealed from them but that it was not patent, or obvious, prior to the sale. Jan-Nis Gortzen claimed he was aware of damp in the kitchen and dining room, and that was apparent from the damp smell and bubbling paint.

But his former wife, Moolman and the estate agent all said they were unaware of, and did not notice, bubbling paint or a damp smell when the property was on show. “That tallies with the testimony of both experts who confirmed that damp may not be obvious to the untrained eye and without the use of measuring instruments,” the judge said.

A representative of LimbikaCoatings stated that if a damp area was repaired with Polyfilla it would hold for a limited period of time and would then “begin to fall apart”. “The evidence thus does not support Gortzen’s claim that the defects were apparent”, the judge said.

His former wife accepted that damp constituted a latent defect in the property but took issue with the extent of the damp claimed for. She maintained that she’d been totally unaware of tany damp issues and had merely sought to put the house in “showroom condition” before putting it on the market, not to conceal any defects. But the evidence did not support that.

The Gortzens had renovated the property in 2010, and after the husband moved out in early 2013 the wife had some areas repainted. But in her version, the judge said, “it required repainting again in September 2013 because certain areas were looking “tatty”. These facts are consistent with repeated issues arising in respect of the state of the walls and the paint/ It is improbable that she was unaware of the damp, given these facts”. Thus the appeal was dismissed.

The bottom line in these cases is that many properties are sold with latent defect, whether the sellers know it or not.

Buyers can spare themselves a lot of drama by paying a relatively modest fee to a professional property inspector who will utilise specialised equipment to check for damp, as well as the integrity of ceiling timbers, wooden windows, door frames and doors, storm water management and retaining walls.

Money well spent, if you ask me.

Source : Business Times 2024-03-10 by WENDY KNOWLER