Roof leaks and special clauses
In this week's David’s Snippets, the local attorney helps readers with the 'magic words' for a perfect special clause.
Picture the scene! On viewing, the roof DEFINITELY has a leak – a fairly substantial one at that. The water marks on the ceiling and walls indicate that.
The seller says its just storm damage from one of our recent mini-floods. The purchaser says he will take the house if the roof is fixed.
So the issue is what to say in the special clause.
Start by thinking through the scenarios. Clearly the seller does not want to sell the house with a declared latent defect; nor will the purchaser accept that. So that route is out.
What’s needed is a clause that will not kill the deal but will satisfy both parties.
First possibility is maybe to say… ‘Seller to repair storm damage to the roof and interior’. But what if there is more wrong with the roof than just a storm overflow? Roofs don’t just leak. There normally is an underlying cause!
With that wording, there is the risk the purchaser will be left with a cosmetically repaired roof and interior but still with a major defect – eg. Rotten roof batons causing tiles to slump and thereby create a situation causing leaking in heavy rain, but not in light rain.
So as a better alternative, how about …’Seller to repair storm damage and make roof leak free’?
Using the magic words…’leak free’ is a huge advantage. The words do not sound too onerous, but they cover a multitude of potential problems.
I once had to litigate a case about those very words. The house in question had a thatch roof and the purchaser could see signs of leaking and asked that the seller … ‘ make the roof leak free’. Well what transpired in the case is that the roof suffered a fatal defect. The pitch of the roof was less than 45 degrees – which is the minimum for a thatch roof. So those two little words forced the seller in the end into a major roof reconstruction costing a huge a amount of money – because that was the only way the roof could be made leak free!!
True story!!
The other massive advantage of the magic words is that while they sound innocent enough, their impact normally comes much later when the deal is advanced or even registered. But the point is, without them, you are leaving an unsuspecting purchaser very exposed.
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David’s Snippets
(A collection of legal articles taken from real life in a conveyancing office.)
For previous Davids Snippets articles click here
https://www.citizen.co.za/north-glen-news/148373/davids-snippets-collection-legal-articles-taken-real-life-conveyancing-office/
https://www.citizen.co.za/north-glen-news/149416/rates-refund-process/
https://www.citizen.co.za/north-glen-news/150289/davids-snippets-collection-legal-articles-taken-real-life-conveyancing-office-2/
