Buyer Beware: When A Property Defect Is The Buyer's Problem

There’s an old saying: "A buyer needs a hundred eyes, but a seller needs none." This is the core lesson from a long, expensive legal battle that lasted over a decade.

The Story A couple bought a house in October 2013 for R1.55 million in Marina Da Gama. The estate agent called the home “stunning,” and the buyers moved in. Seven months later, the wooden deck collapsed. It turned out the deck had been built illegally—without approved plans and not built to National Building Regulations standards. Because these problems were latent (hidden from view to a layperson on inspection), the buyers didn't notice them during the initial inspection. 

They sued the seller and the estate agent, but after a 12-year legal fight, they lost everything. Here is why:

1. "Stunning" is just marketing, not a guarantee The buyers argued that because the agent called the house “stunning,” the agent was responsible for the structural quality. The court disagreed. Descriptive words like “stunning” or “beautiful” are just sales talk—what the law calls “puffery.” It’s just an opinion on how the house looks, not a professional promise that the foundation is solid or that the building plans are legal. Unless an agent tells a specific, verifiable lie (like “the roof is new” when it isn’t), they aren’t legally on the hook for hidden defects they didn’t know about.

2. The Voetstoots clause is powerful Most home sales include a voetstoots clause, which means you are buying the property “as is.” To win a case against a seller after you've bought the house, you have to prove two very difficult things:

• The seller knew about the hidden defect.
• The seller deliberately hid it to trick you.

In this case, the buyers couldn't prove this. In fact, they admitted in court that they thought the seller was an honest person. Even though the deck had been “patched up” in the past, the court ruled that basic repairs don’t prove someone is trying to commit fraud.

3. You have to calculate damages the right way The buyers made another mistake: they asked the court for the cost to replace the deck. That’s not how the law works. If you find a defect, you are entitled to ask for a reduction in the price of the house based on how much the property's value dropped because of the problem. They asked for the wrong thing, which would have weakened their case even if they had proved the seller was at fault.

The Bottom Line

• Don't take sales talk seriously: Real estate ads are meant to sound good; they aren't technical reports.
• The responsibility is yours: The burden is entirely on you to inspect the house before you sign the deal. If you don't hire the right experts to check for illegal structures or rot beforehand, you are stuck with the problem once you move in.
• Get advice early: This couple spent nine days in court over 12 years and lost. Always pay for a professional property inspection before you sign on the dotted line, not after the deck falls down.