This week, our Property Poser expert assists a reader who recently purchased a fixed property. She took early occupation and had started clearing the garden when a portion of the boundary wall collapsed.
The reader claims that the seller was aware of the alleged structural problems but failed to disclose them. She would like to know who is responsible for fixing the damage.
According to Schalk van der Merwe from Rawson Properties Helderberg in Cape Town, early occupation refers to the occupation of a property prior to its transfer from the seller to purchaser.
“Occupation would typically resemble a rental-type situation in anticipation of the transfer.”
Van der Merwe says occupational rental is paid by one party to the other – either seller to purchaser or vice versa – depending on which party is in occupation without the benefit of actually owning the property.
“In other words, the seller could still pay occupational rental should he or she occupy the property after its transfer into the purchaser’s name.”
In the current instance, the reader decided to start clearing “her” new property, which was not yet in her name, says Van der Merwe.
“Part of the clearing included the removal of a tree which, by the sound of things, was close to a boundary wall. The wall collapsed after the tree was removed but there is some debate as to the causality.”
Van der Merwe says the reader was careful to point out that the collapse was not as a result of the removal but entirely incidental to it.
“She mentions that there was structural damage to the wall that led to the collapse and that the seller failed to disclose it. However, she hasn’t provided any evidence to support these assertions.”
The issue now turns on whether the tree caused the damage to the wall or whether the wall would have collapsed in any event, says Van der Merwe.
“The seller’s insurer has denied responsibility relying on the structural flaw as the cause of the collapse.”
Van der Merwe says the matter is further complicated when one considers whether the reader should have removed a tree from the yard of a property in which she was, simply put, a tenant.
“But this aspect would be more of a concern if the removal of the tree was a contributing factor to the collapse of the wall.”
If it was the cause, and the property was subsequently transferred to the purchaser, the issue is largely moot because the damage would remain the reader’s problem, says Van der Merwe.
“If, however, the two events were unrelated, the matter requires further consideration.”
Because this appears to be a once-off private transaction between two individuals, Van der Merwe says the Consumer Protection Act will not apply and that the common law position regarding latent and patent defects will.
“Patent defects are those that could be seen during an ordinary inspection of the property, while latent defects are not.”
Van der Merwe says the onus is as much on the buyer as the seller to identify patent defects.
“It may be difficult to prove that the seller knew about a latent defect such as the problems with the boundary wall.”
The reader has asked whether a report by a consulting engineer would assist in clearing up the matter.
“Obtaining such a report would be costly,” says Van der Merwe. “The reader should decide whether to pay legal costs associated with enforcing her rights under the common law or whether the money would be better spent coming to an agreement with the seller regarding responsibility based on the engineer’s report.”
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Author: Coetzee Gouws from Full Stop Communications. Originally distributed by MyPR.co.za.
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Schalk van der Merwe: Rawson Properties Helderberg Photographer: Supplied
