Many well-meaning estate agents, their principals and conveyancing attorneys continue to be quite happy about routinely using the voetstoots clause in their pre-printed sale agreements, despite the fact that from the buyer’s standpoint this is:
- Bad professional advice
- Just plain wrong
Latest statistics for October show that more than half of home buyers in October 2012 continue to be first-time (read inexperienced buyers). Take a look at the verbatim emails below received this week by HouseCheck from a first time buyer. Crystle’s experience is typical of many such complaints we receive.
The estate agents and the big guns in the real estate industry (read estate agency principals, lawyers and banks) continue on their merry way of protecting the seller (with the voetstoots clause) at the expense of the buyer (who should be equally protected by being advised by the estate agent to make the offer to purchase conditional on a satisfactory home inspection report).
An independent, professional home inspection is the only practical way for buyers to properly understand the actual condition of the house before committing their hard-earned money. Sooner or later the Government will wake up and make home inspections on second hand houses mandatory. Until then what we need is a “white knight” to take on one of the biggest estate agencies – all the way to the High Court – so as to establish case law and force estate agents to become accountable before the Consumer Protection Commission when they fail to properly advise buyers about the implications of voetstoots.
Read Crystle’s story below and feel the injustice. John Graham CEO HouseCheck.
Good Morning: I am sending this email in desperation and in hope that you will be able to give me some advice. We are first time property owners and to be honest SO new that the registration only went through yesterday. Unfortunately, being 1st time buyers we are a bit on the stupid side.
When viewing the property, we were shown a leak in the main bedroom’s bathroom that had been repaired but the damage had not. We said that we would repair the damage ourselves (it was only watermarks on a wall). After moving in on the 27th of October we noticed a leak in the guest bathroom. At first we thought that it was the basin but after inspection realised that it was not. There is a water puddle in the middle of the floor after we shower (the shower is in the main bedroom’s bathroom). On Friday night we spoke to friends who just put their house in the market and they told us that the buyer had to sign a document outlining all the faults in the property, a document we didn’t know about and didn’t ask for until this morning (from the estate agent).
Yesterday morning we contacted the seller’s lawyer and informed them about the leak. They replied stating that we should get two quotes to have it fixed. I immediately phoned plumbers to make appointments. At +/- 11:04 we received an sms stating that the registration has been completed. My husband phoned the lawyer to enquire about the course of action where he was telephonically told that we bought the property voetstoots and that they will not repair the damage.
The offer to purchase states:
Voordele en Risiko: Alle risiko’s en eienaarskap sal vanaf datum van die oordrag van die eiendom oorgaan na die Koper, asook alle voordele en verantwoordelikhede vir betaling van alle heffings, eiendomsbelastings, en ander uitgawes met betrekking tot die eiendom.
We informed the lawyer of the leak at 9:13, we received a response at 9:30 stating that they would pay for it and that we needed to pay the occupational rent as soon as possible for the registration to be of effect. They therefore knew about the leak before the registration of the property on our name. At 11:04 we received an sms stating that the property has been transferred to our name even though we have not made the payment.
I feel that the registration was pushed through as to free them from paying to the fix the leak that the previous owners HAD to know about unless they never used the shower. It is impossible to not see the puddle of water on the guest bathroom’s floor after the shower had been used.
We have decided to hold back the occupant rent until this has been sorted. Do we have a right to do this? Do we have any grounds to stand on to claim that the previous owner pay to fix the leak and any other expenses arising from this such as replacing the tiles that need to be removed?
Kind regards, Crystle Swanepoel
Hi Crystle: What follows is not legal advice (I strongly suggest you to consult an attorney in this regard), but is rather just a few thoughts on your situation. I am not an attorney or legal expert. However, this is how I see your situation:
- The transfer registration has gone through and so the property is now legally yours.
- Withholding occupational rent may open you up to a claim from the seller – but is unlikely to threaten your continued ownership of the property. At the same time this may tend to bring the issue to a head, seeing you have a counter claim regarding the defective plumbing and the undertakings you received.
- If I was you I would play hardball – withhold the occupational rent and send a letter of demand for payment of what you feel you are due as regards the defective plumbing. If you stand firm this may well bring all parties to a point of negotiation where a sensible and fair compromise can be worked out.
Good luck and please remember that the above is not expert legal opinion, but rather just some friendly advice on a possible way forward. Kind regards, John Graham CEO, HouseCheck