One of the best pieces of advice an estate agent can give to a home seller is, 'declare openly and upfront all the defects and faults in your property'.
This is the counsel of Tony Clarke, MD of Rawson Properties.
'I would in fact go further,' said Clarke. 'I would advise sellers to ensure that in the sales mandate that they sign with the agent every one of the defects and deficiencies of the property is listed in writing'
This, said Clarke, could be useful at a later stage if it became evident that the agent had not been completely open with prospective buyers.
In the majority of cases, said Clarke, where the fault becomes evident after a sale, the owner will often himself have been unaware of it.
In one case Rawson Properties sold a home with a patio gas braai which had been disconnected for many months. On moving in, the new owner linked the braai to a large gas cylinder and invited his friends to a housewarming braai '“ but a small explosion shortly after the gas was turned on alerted him to the fact that there was a serious leak in the system.
'The previous owner, on hearing this, was distraught,' said Clarke, 'because he realised that he could in fact have put the whole family at risk '“ but it was quite clear to us that he had long since forgotten that his braai was actually out of action. Nevertheless, had anyone been seriously hurt or killed, a case of culpable homicide would have been investigated'
Regrettably, said Clarke, there are cases of deliberate non-disclosure '“ and he warned that this is a legal offence which can result in penalties and even a cancellation of the sale.
'In my experience,' he said, 'non-disclosure is usually the result of the seller being in financial difficulties and wanting a quick sale. However, it has also been my experience that revealing the relatively few negative aspects of a property upfront very seldom causes the buyer to walk away, especially if the seller and buyer agree to share the cost for their repair, during the negotiating phase of the sale'
Where a defect has already been treated by the seller, it is, said Clarke, wise to draw this to the attention of the buyer and to present him with the receipts for the work done. In many cases if the problem comes up again, it will be covered by a warranty and the contractor/artisan responsible for the repair can be called in to put it right. .
Unreliable hot water geysers, erratic electricity networks, damp patches and leaky swimming pools are probably the most common problems encountered by new owners.
In certain court cases alleging non-disclosure, said Clarke, the seller and/or his agent had been able to show that the defect was 'patent', i.e. was there for all to see and was not in any way hidden. For example, if the ceiling was collapsing, this would be evident to anyone coming into the room. In such cases, even though the fault was not declared upfront, the seller and his agent could be exonerated of all responsibility.
Clarke said that these comments were important because there is still a widely held misconception in South Africa that the voetstoots clause frees the seller from any further responsibility once the property has been transferred.
'This is simply not true,' said Clarke. 'If the seller is guilty of deliberate non-disclosure, the law will come into force on behalf of the buyer'
