Selling a house with defects such as dampness in the walls, without disclosing it and covering it up with paint and filler, can have consequences, as Johannesburg homeowners discovered when the court ordered that they had to pay the buyer the costs of the repairs.
The Gortzen couple was earlier ordered by the lower court to pay the new owner R244 855 - the cost to fix the damp problems.
This is after buyer Ardyn Moolman turned to the lower court to either have the purchase price of the house lowered or to have the buyers pay for the repairs. The court chose the latter option.
Aggrieved with this ruling, the Gortzens turned to the Gauteng High Court, Johannesburg, to appeal the lower court’s ruling. The high court, however, turned down the appeal.
Following the divorce of the Gortzens, they decided to sell the house. The wife, however, remained in the house to oversee some work done to the property in preparation of the sale.
She obtained the services of painting contractors, and they undertook superficial repairs of the property – primarily by patching and refilling cracks and marks in the paint, and re-painting. The property was put on show shortly thereafter.
Moolman made an offer to purchase and a sale agreement was concluded between her and the sellers. It included a voetstoots clause. It also contained a defects disclosure form, which stated “the seller further confirms... that there are no latent defects in any of the following items unless likewise disclosed by placing a cross in the relevant blocks”.
None of the items in the disclosure list was checked, including the listed item “dampness in walls/ floors”.
Moolman paid the full purchase price and after transfer, she was given the keys to the property.
In planning for renovations to the property, she discovered damp, triggering the present proceedings.
The issue earlier before the lower court was whether (one or both of) the sellers were liable for the cost of repairing damp in and around the property, in light of the voetstoots clause in the sale agreement. The magistrate found that both the sellers were liable.
Mr Gortzen was unhappy with the magistrate’s finding that there was in fact damp across the property, and that this constituted a latent defect amenable to a claim. His version was that he was aware of dampness in only two areas - the kitchen and dining room.
The high court said the finding that there was damp in and around the property cannot be gainsaid. It was agreed between the seller and the buyer’s experts that the interior walls of the garage, the entrance hall and the windows by the water feature, the entire perimeter wall, the west side exterior wall, and the columns were affected by damp.
This damp qualified as a defect because it affected the use and value of the property, the court said.
Both appellants (the sellers) disputed that they were aware of the defects at issue, and that they concealed them from the buyer.
Mrs Gortzen’s version was that during her marriage to her now former husband, she was not responsible for the maintenance of the property. It was attended to by her husband.
She said he had not apprised her of either the bubbling paint in the dining room or the damp smell in the kitchen. She was consequently wholly unaware of any damp issues in or around the property – a position she submitted was consistent with the experts’ evidence that damp can go undetected for years.
She also testified that she retained a number of contractors to “beautify” the property in advance of marketing it for sale in the hope that, by neatening it up, she and her husband would sell the property as quickly as possible and fetch the best possible price.
Mrs Gortzen said because she was herself ignorant of the dampness, she could not have sought to conceal it. The lower court, however, found that on a balance of probabilities, both she and her husband at the time had known of the damp and had designedly concealed it during the sale.
Their appeal was subsequently turned down.
Pretoria News