February 2012 : Who is Liable for Your Leaking Roof
You buy your dream house, you settle in, all's well. Until it rains, and the roof starts leaking. Who's liable?
The law, and the limits to voetstoots. First, determine whether the leak problem is a latent defect, i.e. one that "would not have been visible or discoverable upon inspection by the ordinary purchaser".
Next, check the precise terms of the sale agreement. Standard practice is for property sellers to sell the property "as is", by contracting out of liability for latent defects with a voetstoots clause.
Note that a seller can never use a voetstoots clause to escape liability for any defect which he/she is actually aware of - deliberate failure to disclose a material defect is fraudulent.
Moreover, where the CPA (Consumer Protection Act) applies - and although current thought is that one-off private sales won't fall under the Act, you should take specific advice on this in need - the buyer's position is likely to be a lot stronger, perhaps even to the extent of voetstoots clauses losing all validity. There is also speculation as to the extent that estate agents risk liability in sales generally. (Note that the court case mentioned below arose before the CPA came into effect.)
The law, and the limits to voetstoots. First, determine whether the leak problem is a latent defect, i.e. one that "would not have been visible or discoverable upon inspection by the ordinary purchaser".
Next, check the precise terms of the sale agreement. Standard practice is for property sellers to sell the property "as is", by contracting out of liability for latent defects with a voetstoots clause.
Note that a seller can never use a voetstoots clause to escape liability for any defect which he/she is actually aware of - deliberate failure to disclose a material defect is fraudulent.
Moreover, where the CPA (Consumer Protection Act) applies - and although current thought is that one-off private sales won't fall under the Act, you should take specific advice on this in need - the buyer's position is likely to be a lot stronger, perhaps even to the extent of voetstoots clauses losing all validity. There is also speculation as to the extent that estate agents risk liability in sales generally. (Note that the court case mentioned below arose before the CPA came into effect.)