WENDY KNOWLER | Hiding defects from buyers when selling a house can be costly

Can you sell a house with latent defects - which you don’t disclose - then play the voetstoets card when the buyer confronts you with evidence of the dire issues they’ve discovered?

You can, but if the buyer can prove that you had to have known about the defects — that is, you deliberately failed to disclose them — then you can be made to pay for the cost of the repairs. That’s if the buyer has the money and the patience to mount a legal challenge.

Unhappily for the sellers in a case settled in the North Gauteng High Court last month, Molatelo Maloka had both.

She bought the Roodepoort house from Nicholas and Hesta Vermeulen in July 2014 for R2.3m after responding to an estate agent’s listing of the property.

She told the court that when viewing the house she asked Vermeulen if there were waterproofing problems and he said no.

The sellers filled in a “property condition report” shortly after Maloka signed the offer to purchase, stating that the property suffered from damp but was limited to a "damp wall in the dining room. Not sure if damp? Wall in main bedroom — damp repaired”.

But Maloka was in for a nasty shock. She moved her belongings into the house in mid-December 2014 and locked up and left to spend the festive season in Polokwane the next day, having not noticed anything untoward. When she returned home almost a month later, she was greeted with an overwhelming smell of damp.

At first, she thought it was because the property had been left unattended for so long and that the carpets had just been cleaned by the sellers. But when she started unpacking, she noticed that the smell was everywhere and there was some discolouration on the carpets.

The shelving in the kitchen was "sunken" and some of her belongings had mould on them, she said. There was damp on the floors of the main bedroom and two spare bedrooms, as well as rising and horizontal damp on all the walls of the property, including the main bedroom, kitchen, dining room, study and spare bedrooms.

Maloka testified she had not at any stage looked in the cupboards before she took occupation and when she viewed the property as she felt this would have been an invasion of the Vermeulens' privacy.

Tip: it’s not impolite to properly inspect a home before committing to buy it. Turn on the taps to check the water pressure and look inside the cupboards — mouldy shoes are a bad sign. Better still, call in the professionals — more on this later.

Maloka also testified that the sellers told her that she could have the headboard in the main bedroom because they were moving to a smaller house and would not have the space for it. She had thought this a kind gesture on their part, but when contractors later removed it they found that it was concealing flaking paint.

You can’t hide behind the estate agent who handled the sale to avoid liability

—  Judge Selemeng Mokose

She continued living in the house and noticed more problems associated with damp which she told the estate agent about.

In 2016 she took legal advice which resulted in the matter being heard in the high court for three days in May last year, culminating in judgment handed down by judge Selemeng Mokose on January 5.

In short, expert evidence was that the rising damp was brought about by the incorrect design and/or construction of the property and that it would have manifested in the home soon after the first year of rain.

There was no way the Vermeulens, who had lived in the house for 11 years, could not have known about the damp issues, an architect testified.

Vermuelen’s testimony was that in late 2004 — a year after they moved in to the house, there were heavy rains which resulted in water trickling down the study wall. (Damp moves up, not down walls.)

That was the first encounter with any sort of problem with the house, he said.

A roof specialist had been contacted, which led to the wall being stripped and damp-proofed, Vermeulen said, and the problem never reoccurred. He denied there was no mould in the cupboards and denied that they had deliberately concealed any defects from Maloka.

Here’s what the judge said:

• If the seller is aware of a latent defect and deliberately conceals this from the purchaser, the purchaser will then have a right of recourse against the seller.
• Where a seller is aware of the latent defect but seeks to avoid liability on the basis that he believed the latent defect had been repaired, he must “possess an honest belief in the adequacy of the repairs” such that the problem had been permanently addressed.
• You can’t hide behind the estate agent who handled the sale to avoid liability. A seller has a duty to disclose a latent defect that he knows about.

“I am of the view that the defendants must have known about the damp issues in the house,” Mokose said.

She found Vermeulen to have been neither truthful nor reliable as a witness. The couple was ordered to pay Maloka R417,787.77 plus interest from the date of summons to the date of final payment, plus the costs of the suit.

This case should serve as deterrent to those who are tempted to sell their home without disclosing the defects. And it’s a stark reminder to potential buyers that before saying yes to that huge purchase, be prepared to spend a few thousand rand on a professional home evaluation.

Google “home inspections” and read the reviews on your chosen company before proceeding. Their fee will be a lot more affordable than the big repair bill you could otherwise well end up with.

• GET IN TOUCH: You can contact Wendy Knowler for advice with your consumer issues via e-mail: consumer@knowler.co.za or on Twitter: @wendyknowler.