[Question] How far can I stretch "breach of contract" in a property sale?

[Stephen]

Roughly 16 months ago I purchased a property. One of the conditions of sale included some small fixtures that were to be retained in the property
Upon taking possession of the property I noticed that these fixtures were missing and asked the agent to request them from the seller.
I have to date, not yet received these items...

Given that the value of the property is roughly R900 000 and the value of the fixtures are, at most, probably a few hundred rand, what is the likelyhood of me being able to void the sale of the property due to the seller's breach of contract?

Any advice?

[Sieg]

Stephen

Has the property already been registered in your name? If not, I suggest that you obtain a quote for the replacement costs of the items that the Seller should have left behind in terms of the sale agreement, then take this to the conveyancer and ask them to delay registration of transfer until the items have been returned or replaced or the conveyancer confirms that the amount will be deducted from the Seller's proceeds and paid over to you on registration. Also ask the conveyancer to send the Seller a "breach" notice as per the agreement.

If transfer has already taken place, you will probably not be able to cancel the sale but can claim for the value of the items. It will be within the Small Claims courts' jurisdiction so it will be relatively inexpensive for you.

Good luck!

Sieg

[Dave A]

There's nothing quite like clear advice from a really good property lawyer. Thanks for helping on this one, Sieg.

[Stephen]

Okay, then...

Thanks for the advice. Much appreciated...

[Sieg]

Stephen

Would you give the Forum some feedback in due course?


Sieg

[Dave A]

I've got to agree with Sieg. It's helps to hear how things work out, and it's absolutely great to hear when things went well.

[Stephen]

Thanks for the encouragement... But I don't think I will be pursuing this.
Transfer has already taken place (many moons ago) and the effort involved in trying to claim for fixtures worth possibly (at most) two hundred rand, is just not really worthwhile.
If I could demand a billion rand settlement, then that might be the way to go...
Otherwise...?

[gerry]

I had the same experience with the purchase of my property, however the replacement damages was about R 70 000.00 removal of items by the seller. We held back an amount of only R25 000.00 for damages however we were demanded to make payment based on the voetstoets clause.We used Weivand and Weivand attorneys to defend the matter but got nowhere just a bill from the attorneys valued to R12 000.00 including a summons to make payment. So we lost out and had to pay the R25 000.00. So basically u have no rights in this country.

[Dave A]

I hear you about the legal bill. You really have to look before you leap with litigation nowadays.

Were these fixtures removed after the acceptance of offer to purchase, Gerry?

[gerry]

Yes this was done after offer to purchase was signed. The sellers made emphises on all the light fitting in the home and how well the outside was lit up. They removed these and replaced them with cheaper light fitting. They removed doors, ceilings,buildt in cubboards, cutail rails and the lsit goes on. Their lawyers kept putting pressure on us to sign the transfer based on the voetstoets clause. We were told we had a good case with Weivand & Weivand attorneys and they let us down the day before going to court. Said we should rather pay them the R25 000.00 we held as retention as it would be difficult to proof that they were the ones that removed the items.

[Dave A]

Said ... it would be difficult to proof that they were the ones that removed the items.

Was there a problem with evidence and proof?
And if there was, have you got any tips and advice for anyone else to avoid having the same problem?

[Sieg]

Fixtures, fittings and movables

Seems that many of us have had this disappointment: We buy a house and when we move in, we find that items are missing - curtain rails removed, the kreepy krawly has been replaced with an old broken one, the garden shed is gone, and so on.

Then the arguments start: The Seller will say "But I sold you the property voetstoots"! [Amazing what a big screen this voetstoots is that one can hide behind it so easily.] Or the Seller says "But did not not sell you the pool equipment, curtain rails, electric switch covers, built in cupboards, ceiling fans, front door bell, and so on". Or they argue that this item was not a fixture and they could therefor remove it.

Prevention is better than trying to "prove" matters later in a Court of law.

What I recommend:

1. Knowing that the Buyer must be aware, when you first look at the property, prepare a list (an inventory) of all the movables that are included. Best way is to go through the house room by room. Attach this list to the sale agreement, make sure the sale agreement refers to this list and get the parties to sign the list.

2. Take photographs of every room, from all angles and also the outside, from all angles, when you first view the property. Then, when you move in, do the same. [I know of one guy who videotaped the entire property when he first viewed it. When the "tape" was shown to the Seller's attorneys, the Sellers gave up.]

3. When things go missing, you must advise the conveyancer and the agent, in writing, specifying which items are missing and what the replacement cost is. [Get written quotes!]. Ask the conveyancer to confirm that the replacement costs will be deducted from the Seller's proceeds and paid over to you on registration of transfer. If the conveyancer does not want to do this, go get legal advice from another attorney to stop the transfer until you have been given these undertakings.

Regards
Sieg

[Stephen]

Well, do you believe in karma?

I just found out the previous owner of my house died recently (natural causes, I promise!)...
He was in his mid-40s...

[Alta Murray]

Busy dealing with my father's estate and property -- boy the voetstoots clause is a winner! I am putting that in every single contract -- Buy your system now -- voetstoots!!

But with property you also have latent and patent defects, and my fav ' reasonable person' which seems a broad definition. I was also told that if you buy a new property you better flush every loo and open every tap. Looney as opposed to reasonable?

The fees can be high, but if you find a good attorney ( and no there is no way to tell) it can save you mega-bucks. Sure saved me!

But let me tell you about the blue collars of this world and cut the lawyers some slack. I am on a crusade these days -- a loo leaks -- they charge you R 550.00 just as a call-out fee!! Garage door stuck -- R 350.00 call out? The bloke lives just over the mountain, and is he so highly qualified that I need to pay him that amount just to get him here? I wouldn't pay that for Johnny Depp.

Where is the regulations on this? It is a free for all, at least with a lawyer you know you are in for a penny, in for a pound.

I have gone toe-to-toe with a few lawyers these past months, as a profession they are a nice bunch of people apart from the terminology which sends me off to dreamland. They say at least an accountant knows he is boring tee-hee....

[Alta Murray]

Hi Sieg,

I also thought of taking pics, but I thought that would really push me beyond being a reasonable person. Seems nowadays you really need to do things thoroughly,and as the bible teaches prepare for the worst case scenario.

The biggest lesson I have learnt -- read every line of every contract, and if you are not sure, get a lawyer to do it for you! People think it is a waste of money and time, but I shall not deviate from this course of action.