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

[gerry]

The wheel turns

Hi, Yes there were pictures taken by private property and the pictures were on the website. But when we showed the pictures to the lawyers it was not ample proof. Their Lawyers informed us that we should move out of the property if we do not want to sign the transfer and the owners would sue us for the damages to the property. What damages?

Let me mention they removed the railing the gate was on and just placed the gate on the wall. I happened to walk past the gate with my two year old behind me, might have touched the gate, the next thing I knew the gate fell on my ankle.Imagine if it fell on my daughter. I wrote a letter to the transfering attorneys with a list of all the fittings that were removed as well as informed them of the gate, and they were not in the least bit interest. The sellers informed them that they had moved nothing.

But I believe what you sow you will reap.

[gerry]

Altar, I'm an accountant ...but I'm glad I'm not a lawyer...I'm yet to find a lawyer that more interested in my case than money.

I will video tape, take pictures, make them sign a list, make them sign the photos, everthing and anything that will ensure this never ever happeneds to me or anyone else again.

[Alta Murray]

Hi Gerry,

Naah, love accountants, they never bore me, quite the opposite!!!! I am into financial/business analysis so it is a pet subject.

The joke originated as my son is a second year law student, so he gets all the first rate lawyer jokes -- and the joke goes thus:

What's the difference between an accountant and a lawyer? At least the accountant knows he's boring! Some of the jokes I don't get, as it is littered with latin, but this one had me hosing myself :-)

Anyway Gerry, let's get down and dirty(read boring) -- I have a question about a bank overdraft and would love your input:

In the USA if a company has an overdraft it is put under Capital Employed Short-Term Debt, however in SA we put it under Current Liabilities.

The pure definition reads as you well know that a current liability is a debt that must be serviced within the financial year. I have never come across an overdraft serviced in a 12 month period. The logic behind this in SA is that the bank can call in the overdraft at any time, and that it is reviewed once a year by the bank.

What do you think? I just feel that it has a huge impact on analysis if not in accounting?
Now how can anyone call that boring!

[Alta Murray]

Oh, Gerry PS If you need a good lawyer that will be more interested in your case than your money, just give us a shout. My lawyer is like me -- she does it because it is her passion, and though we live in a man's world and we have to work harder, it is sometimes easier as we have hubby's who can pick up the bills ;-)

[Dave A]

it is sometimes easier as we have hubby's who can pick up the bills ;-)

Honest too

[gerry]

OK, Altar,Will take u up on your offer....let me see how good your lawyer really is.Even thought its unbeliveable. How can I get his/her details?

[Alta Murray]

and a clever girl, if the odds are stacked against you, you work the system. And I adhere to my grandma's advise : Work with what you got :-) Now Dave, I don't see a lot of men able to do that, so you can have the world ha!

[Alta Murray]

Hi Gerry,

I spoke to her this morning and she's ok with it if I give you her details. She did ask where the property was situated but I couldn't tell her of course.

She is Suzette Geyser Cell 0834606204 and if it wasn't for her, I would have been a dead duck in the water.

Now how about my question on the bank overdraft?!

[skilpad]

Breach of contract

We bought a house and transfer is still with the deeds office. House was sold as voetstoots, but day of viewing the house there were stuff, but day of occupation it wasn't there anymore. In the contract we atleast instructed that the seller should fix roof leaks, which he did, but it is still leaking. We have also found other leaks that wasn't mentioned - including leaking gutters. We have instructed the transfer attorneys (which is family of my wife) to delay the transfer till all these are fixed, but now seller is also delaying the transfer and seems unwilling to fix all the leaks which is giving me the impression that he is delaying as the get more occupational rent out of me. What is my options on this and shoud he also fix the leaking gutters which is latent defects?

Is he in breach of contract for not fixing these faults and/or not even giving a response if he is trying to do something about this. According to the attorney he is not, as we don't have any evidence that he is not doing anything to fix it as he is don't have to give us a response. And by delaying the transfer from the seller's side, should I be liable for the rest of the occupational rent till they are done with the transfer?

Thanks and regards.

[sterne.law@gmail.com]

Perhaps a better avenue to pursue is whereby you affect the repairs and deduct it from the rentals owed. Of course the cost of repairs, if too great, may not make this a solution.

The landlord is obligated to provide premises fit for occupation, and the with holding of rent in lieu of repairs is one of the few times that a tenant can not pay the rent.

[Dave A]

First step - get a quote to effect the repairs.

When it comes to litigation and argument, results come easier when you are arguing for Rands rather than trying to force performance.

[skilpad]

Me again.

Looks like threatening helped a bit. It took 2 weeks to get a quote and a response from the owner. Yesterday when I emailed the attorney stating that I will move out of the house and give up occupational rent back to the owner (meaning that owner will have to pay the bond and his rented house) and that the attorneys must put him on terms, I received an email back stating that the owner replied and the excuse was that he was on a business trip. Yeah right? Well, now he is complaining that there is a delay in transfer. The seller have now given me a quote from a person that is not registered with a weatherproof association, etc and I doubt if this guy is even qualified to do weatherproofing and plumbing. During this delay the attorney gave me the go ahead to get my own quotes which I did but now that seller made his come back the attorney suggested that I should use the seller's contractor. Can I still insist in using my own contractor to do the weatherproofing and pluming as stated in the contract? Also someone told me as the transfer is still ongoing and that I'm renting the house now on the same terms and conditions as normal renting, I can insist that the seller fix the house to be fit for occupation. And that I should contact the registration attorneys (bank attorneys) as to the voetstoots clause. When we viewed the house there were fittings visible and in working order. When we moved in it wasn't there anymore or not in working order. This would have decrease the original value to a lower value which will put the bank at risk should something happen.

Any ideas and thoughts.

Thanks and regards

[Dave A]

A dispute over choice of contractor is a good example of why it pays to reduce disputes to Rands and cents.

When we viewed the house there were fittings visible and in working order. When we moved in it wasn't there anymore or not in working order.

You made the offer based on what you saw when you viewed the property - in broad terms that is what you're entitled to receive (particularly when it comes to fixtures). Any variance should be set out in the sales agreement.

It's not unusual for a seller to specify that they will remove a chandelier, for example. But they have to specify it (with buyer and seller agreeing) in the sales agreement.

Also someone told me as the transfer is still ongoing and that I'm renting the house now on the same terms and conditions as normal renting, I can insist that the seller fix the house to be fit for occupation.

If risk and benefit transfers on occupation, no - the terms and benefits are not the same as for "normal" renting. In fact, very far from it.

And if when you viewed it and it wasn't fit for occupation then - well, you knew what you were making that offer to purchase on.

[sterne.law@gmail.com]

Very difficult to dictate who the owner may use to do the work. His obligation is to give premises that are fit for habitation. If his contractor can do that then he has performed. Your issue is if the work is then faulty in 3 months then what? The repairing for occupation is relating to rent. The issue of if faulty later is related to purchase.
Voetstoots is not a cover all clause. If the faulty was something that a reasonable person would know about tehn tough luck. If however it was say a structural issue, there is no way you could know about that and then there may be some grounds. A seller or landlord has a similiar liability - if they make a sale or lease and are aware of a problem then certain issues arise, such as misrepresentation etc. The same rules apply - they either knew about it or could be expected by nature of their proffesion or such to know about it. The example used by old authorities on roman law was that the person who makes pots for holding wine would be expected to be aware that it was leaking but a purchaser of the pot would not.
I see know that it was agreed contractually to repair the things, which is probably tilting teh scale in your favour.

[sterne.law@gmail.com]

Seeing as you are getting some response perhaps the following may resolve the issue and you thus avoid the costs of legal fees -
Send a letter claiming as follows -
Take an average cost of the 3 quotes and claim that and you will affect the repairs (cover yourself for any unhidden faults by saying that this money is relevant only to the repairs as per quote and if any other faults are found while doing repairs you reserve the right to calim for that)
you do not pay occupational rent for the next 2 months in lieu of the poor conditions etc and as compensation
Get a conditional agreement and then get an attorney to draw the final settlement if you do not want it done from the beginning