Voetstoots clause overruled
MONDAY NOV 02, 2015
Seller knew of property defects, court rules
A voetstoots clause in a property sale agreement was not enough to protect the seller of a smart Garden Route cottage when the new owners moved in and began uncovering problems which they were not warned about before they bought.
Edward and Lisa Ellis turned to the Western Cape High Court where it emerged that the sale agreement between them and Catherine Cilliers contained a clause that read: “The property is sold as it now stands (ie, voetstoots) and according to the deed(s) of transfer and diagram(s). The seller shall not be liable for any deficiency in the extent of the property nor shall he benefit from any excess.
“Neither the seller nor his agent shall be responsible for any defects, whether latent or patent, nor shall they be answerable for any warranties either express or implied.”
The Ellises took the matter to court, asking it to rule on the merits of the case and not decide on the relief that they should be granted.
In other words, the issues to be decided on included whether defects they had uncovered at the house were indeed defects, whether these had been concealed and whether the voetstoots clause protected Cilliers.
The court found that Cilliers should have told the Ellises about the problems at the house and Acting Judge Allie Blommaert ruled in favour of the Ellises with costs.
The saga dates back to March 2011 when, after transfer of the property was finally effected, the Ellises started renovations at the house.
It was constructed in such a way that the back of the house was built into a slip and the front on so-called stilts. The couple wanted to make the lounge, kitchen and dining area open-plan and started their renovations by removing kitchen cupboards. They noticed that two sections of the floor had been cut out and later replaced to create access to the area underneath the floor.
In addition, the floor had subsided at its outer edges.
They consulted an expert and, after the floorboards were removed, discovered that the house suffered from a number of defects.
This included severe decay of poles supporting the structure of the timber house, the beams and floor joists. The house was not level. A cement screed over the timber flooring had the effect of concealing the subsidence of the south-west corner of the house and a false ceiling had been constructed under the original ceiling in order to create the illusion that the house was level.
Cladding was added to the outside of the house to conceal the subsidence and wooden wedges were used to raise the lounge floor, which again had the effect of concealing the subsidence of that section of the house.
Cilliers, however, denied knowledge of the defects relating to the foundation.
She admitted that the cement screed was applied 10 years before in order to level the floor, and that a false ceiling had been installed.
However, she claimed it was done for aesthetic reasons and did not constitute a defect.
The cladding was done to save on painting every three years, she claimed.
In a recent judgment, Acting Judge Blommaert said it was trite that, to avoid the consequences of a “voetstoots” clause, the purchaser must show that the seller knew of the latent defect and did not disclose it, and that he or she deliberately concealed it with the intention to defraud.
He said that, from the evidence, two things were patently obvious – the foundation was severely decayed and “certain remedial work” had been done to the house.
Cilliers said she was unaware of the state of the foundation and that the remedial work was done for aesthetic and practical reasons.
She, therefore, did not have an intention to defraud, she submitted, saying she was protected by the “voetstoots” clause.
Acting Judge Blommaert said, however, it was clear to him that Cilliers never considered the significance of telling the couple that the floors were not level and that her late husband fixed it by laying carpets over some areas and tiling on top of a cement screed poured over wooden floors in other areas.
“In my view her actions constituted the necessary intention to defeat the provisions of the voetstoots clause. Even if (she) did not think uneven floors were a defect… it was such an unusual feature that she should have revealed it.
“It certainly was a most unusual feature which made renovation of the house exceptionally difficult. That plaintiffs had an interest in knowing about the cement screed on the floors and the false ceilings, seems to me to be obvious.”
Weekend Argus (Sunday Edition)
Posted at 08:28AM Nov 02, 2015 by Editor in Market |