Your house’s previous owner forgot to tell you about the leaky roof? Here’s what to do

What can you do about the leaking roof your house’s seller did not tell you about?

The property’s previous owner may argue it is not their fault, and there was a voetstoots clause in the sale agreement, but you are sure the seller must have known about it.

According to Roy Bregman, from Bregman Moodley Attorneys, a seller does not have the protection of a voetstoots clause in circumstances where the seller perpetrated a fraudulent non-disclosure or fraudulent misrepresentation.

“Our law sets out when a buyer can successfully sue a seller, despite the voetstoots clause. The buyer must show that the roof of the property suffered from a defect and that the seller was aware of it, had a duty to disclose it and failed to, thereby committing a fraudulent non-disclosure or alternatively misrepresentation.”

He says if the buyer establishes that the seller intentionally failed to disclose the defects in the roof and that they would not have entered into the sale agreement if they had been aware of the defects, the buyer would be entitled to the reasonable costs of repairing the roof and any other loss they may have suffered as a result.

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Is leaky roof enough to suspend sale?

Can the buyer instruct the bond attorneys to suspend the bond and cancel the deal?

Bregman says unless the agreement provides that certain things will be done before transfer or that the property will be in a certain condition, the buyer may not intentionally hold up the transfer.

“Buyers often make the mistake of thinking that if the bank withdraws the bond, it automatically cancels the agreement. What they need to understand is that the bond condition had already been met, which concluded the deal at that time. A subsequent withdrawal of the bond under these circumstances would not undo the sale.”

Bregman says if the seller refuses to agree or negotiate, the buyer has only two choices.

What can the buyer do then?

• proceed with the transfer and then sue the seller for a reduction in price or damages; or
• claim that there was a material misrepresentation to persuade him into buying, then cancel the sale and return the property if he has already taken occupation. The seller can then try to recover any damages he may have suffered by way of litigation.

If the seller instructs the bank to suspend the bond registration with the intention of pressurising the seller to meet his demands, the buyer runs the risk that his actions may give a clear and unequivocal indication that he no longer wants to proceed with the deal and this may justify immediate cancellation by the seller, Bregman warns.

His advice is to always speak to an expert before taking action.