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I purchased a property in Bantry Bay, Cape Town from an

Customer Question
American, Howard Kent Walker. One...
I purchased a property in Bantry Bay, Cape Town from an American, Howard Kent Walker. One of the conditions of sale was that he be allowed to rent the flat back for a period of two months, approximately 6 months after the sale. In addition, all of his furniture has to remain in place until that time and the property has to be rented to him in the same condition that it was received in. When I took occupation of the flat, I found that tiles in the bedroom had popped up. I am not sure if there was a flood but the room is not habitable in the current condition. To make matters worse, I have lost out on rental in the amount of approximately R200,000 because the flat could not be rented given the situation with the tiles. I was not able to make any repairs given the condition of sale stating that the flat be rented to the seller in the condition that it was received. The seller's cleaning service stated that he was aware of the situation prior to my taking occupation. The service also stated that they made the realtor Kate Alexander of Jawitz aware prior to my occupation. So both the seller and the agent were aware that there was a problem with the tiles.
The conveyancing attorney, ***** *****on of Smith, Tabata, Buchanan, Boyes (STBB) has been unwilling to help because of his ongoing relationship with the realtor Kate Alexander (Jawitz). Can you please advise.
Submitted: 2 years ago.Category: South Africa Law
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Answered in 59 minutes by:
2/12/2016
Lawyer: CaseLaw, Attorney replied 2 years ago
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,695
Experience: BCom; LLB; Masters in Law
Verified

Hi there,

This is a further information request so that I can provide you a proper answer to your legal question. Please continue in this same question thread.

Not really understanding the exact timeline of your story is making it hard for me to advise you.

When did you buy the flat? When did you take transfer? When did he move back into the flat? When were the tiles broken? When were you not able to rent the flat out?

You said that you were not able to make any repairs given the condition of sale stating that the flat be rented to the seller in the condition that it was received. Does that mean that you knew that the tiles were damaged after the sale, but prior to him moving back into the flat? Can you clarify?

Any time line details would assist me greatly!

Awaiting your further information.

Regards

CaseLaw

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Customer reply replied 2 years ago
Hi there, I did not know about the tiles as there was no visible damage when the flat was viewed prior to purchase.Flat was purchased in Oct, 2015 with condition of sale stipulating that the owner rent back the property from Jan 15, 2016 to March 15, 2016. All of his furnishings to remain until March 15, 2016.
Customer reply replied 2 years ago
two issues really: 1. Should the previous owner be responsible for costs to repair the tilesAnd
2. Should the previous owner be responsible for the loss of income as I have been unable to rent the flat prior to his rent back period, given the condition of the tiles.
Lawyer: CaseLaw, Attorney replied 2 years ago

If the tiles were not damaged when you viewed the flat prior to October 2015, then surely the implication is that the previous owner damaged the tiles between you viewing the flat and when he vacated the flat? If that is the case, then YES, he is liable for the cost of the repairs.

If however the tiles were previously damaged (e.g. in 2014) and they were already in their damaged state when you viewed the flat but you didn't notice the damage, then NO, the previous owner is not liable to repair them now.

It all comes down to when the damage occurred, and if you knew about the damage, and whether you could have seen the damaged tiles after a careful inspection of the flat. In other words, a superficial inspection is not good enough.

It is a common law requirement that the previous owner needs to deliver the flat to you (date of transfer) in the same condition or a better condition as when you purchased the flat (date of signing the sale agreement).

You need to draw a timeline of the dates and then see where the damage to the tiles occurred. You might find that the tiles were damaged prior to date of signing the sale agreement (then you don't have a claim) or between date of signing the sale agreement and date of transfer (then you do have a claim) or after date of transfer (then you REALLY do have a claim).

If it was a condition of the sale that you rent the flat back to the previous owner from Jan 2016 until March 2016, then I assume that he is still in the flat?

How can you then complain that you have lost out on R200,000 rental because you haven't had the ability to rent the flat out to somebody else? When? For which months?

The situation you describe is VERY different to a situation where you bought a flat in October 2015, and the previous owner has refused to move out. In that instance you WOULD be entitled to a damages claim against him.

But in your situation, I don't think so.

Assuming that you're talking about renting the flat out to a third party for the period October 2015 to 15 January 2016, then you might have a claim against him for the lost rental, but you would need to prove to the court that you mitigated your loss. That means that you fixed the tiles as soon as possible so that you curtailed the "can't rent the flat" period.

The court won't entertain a claim like that if you just didn't repair the tiles when you could.

Also, it's unfortunately NOT a good argument that you were not entitled to repair the tiles because the sale agreement contained a clause that said that you need to rent the flat to the previous owner in the same condition as it was before. That condition would most certainly not apply to damages that need to be repaired, or to maintenance.

That clause would apply to "you can't do renovations" in that October to January period.

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

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Lawyer: CaseLaw, Attorney replied 2 years ago

Hi there again,

I hope that you understood the above advice and that it was useful? Please leave positive feedback for me.

If you have a further question please ask it?

Regards

CaseLaw

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