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Thread: Relief sought as buyer on attempted repudiation of OTP

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    Relief sought as buyer on attempted repudiation of OTP

    Hi

    Was wondering what relief i could claim for in an amount of R 40 000 where the buyer of my house delayed registration until we without prejudice had to capitulate to his demands of repairing a latent defect we were not aware of.

    The contract was clear that it was voetstoets and all risks passed upon occupation however due to our circumstances we had to pay to get the bulk of the transfer through.

    Regards.

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    Diamond Member Justloadit's Avatar
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    If I am not mistaken, all defects, latent included has to be disclosed to the buyer at the time of sale.
    I stand to be corrected here as well, but there is no longer a property sale as voetstoets, as refer to defects and latent defects clause.
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    Diamond Member HR Solutions's Avatar
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    Quote Originally Posted by Justloadit View Post
    If I am not mistaken, all defects, latent included has to be disclosed to the buyer at the time of sale.
    I stand to be corrected here as well, but there is no longer a property sale as voetstoets, as refer to defects and latent defects clause.
    This is my understanding as well.
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    Full Member EAB's Avatar
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    I also saw the issue on voetstoets and that the seller can't hide behind it anymore according to CPA. But in this case the seller argue that there was a latent defect, something that wasn't visible at the time of sale. You can't disclose latent defects to the buyer, because you didn't know about it.

    I think this can end up in a complicated issue, where someone is going to be unhappy. The seller will argue that he didn't know about the defect and the buyer will argue that the seller hid the defect. Usually it is the seller who would have to proof that he didn't know about the defect, which might be tricky

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    Diamond Member HR Solutions's Avatar
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    This is a latent defect i.e. could have been discovered before the sale went thro. Obviously you missed it, but the fact remains that it could have been discovered, therefore it has to be repaired. There is very little that you can hide these days what with COC's etc. Look at it from the buyers point of view - he found something that needed repairing and obviously this caused a delay in transfer.
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    Full Member EAB's Avatar
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    Nope, don't agree with your definitions. There are latent defects and patent defects.

    Patent defect : a defect that is, or should reasonably be, easily identifiable upon inspection of the goods or property

    Latent defect : a defect in an article sold that is not apparent after ordinary inspection by a ‘reasonable man’.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Kryptonite View Post
    Was wondering what relief i could claim for in an amount of R 40 000 where the buyer of my house delayed registration until we without prejudice had to capitulate to his demands of repairing a latent defect we were not aware of.
    You capitulated (accepted that you'd pay for repairs) without prejudice?

    In a dispute, you can make an offer "without prejudice."
    You can make a counter-offer "without prejudice."

    I'm trying to wrap my head around how you can accept an "offer" (their demands) without prejudice, because that effectively amends the conditions of contract.

    What you need to understand is what "without prejudice" really means in this context. It means that the content of your offer can't be held against you if the offer is declined. However, if it is accepted, that offer essentially sets out the agreed new terms of the contract.

    Also note, CPA does not apply between private sellers.
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    Diamond Member Justloadit's Avatar
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    Quote Originally Posted by www.privateproperty.co.za
    Due to the fact that the CPA does not apply to most property sales, most sellers will receive substantial protection against claims based on defects due to the existence of a voetstoets clause. As pointed out earlier, this means that where the seller was unaware of the defect, the seller is not liable to the purchaser, which is where your home inspector comes in.

    Under common law, once a buyer is aware of a problem and it is evident that the fault existed in the property at the time of purchase he may recover any damages he has suffered, including the cost of having to repair the defect himself.
    Read all about it here

    http://www.privateproperty.co.za
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    Quote Originally Posted by Dave A View Post
    You capitulated (accepted that you'd pay for repairs) without prejudice?

    In a dispute, you can make an offer "without prejudice."
    You can make a counter-offer "without prejudice."

    I'm trying to wrap my head around how you can accept an "offer" (their demands) without prejudice, because that effectively amends the conditions of contract.

    What you need to understand is what "without prejudice" really means in this context. It means that the content of your offer can't be held against you if the offer is declined. However, if it is accepted, that offer essentially sets out the agreed new terms of the contract.

    Also note, CPA does not apply between private sellers.
    Thanks. Basically what we did was we said, we'll pay for the repairs to effect the transfer and deny any knowledge of the defect. Now i am wanting to claim damages as we had no knowledge of this defect and the buyer declined to have the house inspected yet wants to hold us accountable. The buyer in writing stopped the transfer in an attempt to repudiate the contract and said until it's fixed they wont allow transfer. When asked if the deal should be cancelled they said no they want the house still.

    Here is the exact text "In an attempt to facilitate registration of transfer the Seller irrevocably and without prejudice or admission of liability"

    The COC's are solid, no issues on those. The weird thing is we had guys working right where the issue was and they all put down in affidavits they had no clue there was any damage, only the 2nd expert that came to site was able to identify where the fault was, the first one wasnt.

    Annoys me quite a bit as we honestly had no clue there was damage and the voetstoets clause is there as well as risk passing upon occupation.........case law seems quite solid in that for them to win they have to prove we knew about it and made an effort to conceal the damage with the specific intent to defraud them....that's how i understand it if you look at the Odendal vs Ferraris case from 2008 in the SCA.

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    Site Caretaker Dave A's Avatar
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    You irritation is entirely understandable given that your position was probably defensible. The question at hand though is whether you were negotiated off a winning position.

    Quote Originally Posted by Kryptonite View Post
    Here is the exact text "In an attempt to facilitate registration of transfer the Seller irrevocably and without prejudice or admission of liability"
    Irrevocably did what?
    The trouble with opportunity is it normally comes dressed up as work.

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