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

**Dave A** · 07-Oct-08, 08:07 AM

Originally Posted by gerry

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** · 07-Oct-08, 11:31 AM

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** · 08-Oct-08, 08:56 AM

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** · 08-Oct-08, 10:42 AM

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** · 08-Oct-08, 10:50 AM

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.

**gerry** · 09-Oct-08, 08:26 AM

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** · 09-Oct-08, 08:37 AM

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** · 10-Oct-08, 11:41 AM

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** · 10-Oct-08, 11:43 AM

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 ;-)