Who is at fault and who should pay for the repair?

The winter rains have arrived, along with leaky roofs, swollen closed doors & windows, marshy gardens, water flowing into the house from the patio, outside electrics fusing and so on. As a home owner you have the required work done, or vow to have it all fixed once the rains stop.

The situation is different however when a house is in the process of being sold. Many defects only come to light when there is heavy rain. Conveyancing attorneys mention leaky roofs as the number one complaint: the house is sold in February with no known roof leaks (since it last rained in September) The new owner takes moves in, there is a deluge of rain and the problems appear. Who is at fault and who should pay for the repair?

Can the 'voetstoots' clause be used so the ex-owners avoid payment?

In terms of a leaky roof, the voetstoots clause is much harder to invoke. A house is a 'roof over your head', so if that roof is defective, courts have ruled repeatedly in favour of the buyer.

When the new owners claim that the old owners must have known and deliberately failed to declare it?

This is a common claim by new owners. However if a long time has passed since they took ownership, or the sellers can prove the new owners have had workmen on the roof, or renovations may have impacted the integrity of the roof, this is not a winning argument. Or the old owners can claim there was a storm with major winds that dislodged a tile.

Did that tennis ball stuck in the gutter downpipe cause the problem and who put it there?

Yes, really. The patio and lounge flooded, and the owner fixed the damage as the house was tenanted at the time.

Doors and windows are swollen shut, is this a defect?

The new owner tried to claim this was a major defect and not covered by voetstoots. The lawyers disagree, as it can be corrected at minimal cost, and wood windows and doors commonly suffer from this condition.

Perimeter beams/automatic gate/outside lights are not working is this a voetstoots issue?

Outside electrical installations frequently give problems when rain gets in the wiring. Any electrical installation must be declared compliant when the certificates are done; if rain makes the installation non-compliant the technicians should come back and fix it. In the case of perimeter beams any difficulties should ALWAYS be declared, as security is of major importance to all buyers and they are expensive to replace.

This is a short excerpt of recent cases, and we would like to offer thanks to our attorneys who have to sort this out after transfer and at no charge.

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