When a buyer can claim damages for a leaking roof

A client asked: I recently bought a house and on taking occupation I noticed that there was a bad leak in the roof that the seller never told me about. I complained to the agent, and she told me that as the deed of sale contained a voetstoots clause there was nothing I could do. What are my rights?

The voetstoots clause in a contract bars a buyer from complaining as he or she buys the goods (in this case a house) as is, in the condition in which it is found.

However, a seller is deprived of the protection of a voetstoots clause in circumstances where the seller perpetrated a fraudulent non-disclosure or fraudulent misrepresentation.

Our law sets out when a buyer can successfully sue a seller, despite the voetstoots clause. The buyer must show that:

  • The roof of the property suffered from a defect, and
  • The seller was aware of the defect in the roof, had a duty to disclose the defect to the buyer and failed to disclose the defect, thereby committing a fraudulent non-disclosure, alternatively misrepresentation.

If the buyer establishes that the seller intentionally failed to disclose the defects in the roof and that he would not have entered into the sale agreement if he had been aware of the defects, the buyer would be entitled to the reasonable costs of repairing the roof and other concomitant loss he may have suffered.

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