Pretoria - Molatelo Maloka thought she had bought a dream home, but what she found was a damp, smelly house with sagging cupboards and bubbling and cracking paint.
The new owner turned to the Gauteng High Court, Pretoria to get a reduction in the selling price of the house, as well as to force the sellers to cough up for fixing the damp problem.
The sellers claimed they were not aware of these problems when they sold the house; that the property was sold “voetstoots” to the plaintiff in any event. Thus, they argued, they were protected by the voetstoots clause against latent defects that were unknown to them. The court found, however, that because the latent defects were known to the defendants, they could not be protected by the voetstoots clause in the offer to purchase.
Maloka told the court that when she saw the Roodepoort house for sale, she went to look at it and decided to buy it for R2.3 million. It was only after moving in that she discovered the damp problems, which were never disclosed to her prior to this.
These included damp on the floors of the main bedroom and two guest bedrooms, as well as rising and lateral damp on all the walls of the property, including the main bedroom, kitchen, dining room, study and spare bedrooms. Maloka said the sellers, Nicholas and Hesta Vermeulen, had a duty to inform her about this when she expressed her interest in buying the house.
She testified that when she viewed the property for the first time the estate agent told her that it had recently been renovated and painted, and in particular that work had been done in the kitchen.
Maloka said that she did take notice of some bubbling and peeling of paint in the main bedroom. She asked the Vermeulens if there were any waterproofing problems and they answered in the negative. Nicholas said, however, that if she wanted to buy the house, he would have it repaired. The plaintiff confirmed that she did not notice any other defects in the house.
Before the transfer of the property, she visited the house with her father. She noticed that the damp she had taken note of in the main bedroom on the previous visit had been repaired
When she eventually moved in, she did not notice anything untoward. She then locked up the house and went to Polokwane for the holidays. On her return she experienced an overwhelming sense of damp. At first she thought it was just a damp smell as the property had been left unattended and the carpets had just been cleaned.
However, when she started unpacking her belongings, she noticed that the smell was everywhere and that there was discolouration of the carpets. The shelving in the kitchen was sunken and some of her belongings had mould on them.
Maloka continued living in the property and during that time noticed more problems associated with damp. She did notify the estate agent and decided to get legal advice regarding the problem.
Nicholas described the house he had sold as a dream home. He, however, said after heavy rain, water began trickling down the study wall. That was the first encounter with any sort of problem with the house. A roof specialist had been contacted and it was stripped and damp-proofed. The problem never occurred again.
According to Nicholas, they did refurbishments over the years and fixed the damp and a few cracks. He said that he had carefully looked after the house.
He denied that when she bought the house, Maloka had asked him about damp problems. He also denied that he or his wife had deliberately concealed any defects from the plaintiff and denied any fraud on their part.
Judge Selemeng Mokose, however, found that the defects were known to the Vermeulens and said they could not be protected by the voetstoots clause in the offer to purchase.
“I come to the view that the defendants must have known of the damp issues in the house. I am of the view that the defendants deliberately withheld knowledge of the damp issues from the plaintiff… The defendants failed to disclose all of these to the plaintiff. Accordingly, this is a fraudulent non-disclosure on the part of the defendants,” the judge said. She ordered the Vermeulens to pay Maloka R414 787.77, the price quoted by a contractor to fix the problems.
Pretoria News