 Welcome to Your Property Rights Podcast, proudly brought to you by Private Property. If you're looking for expert legal answers to all your property-related questions, then stay tuned. It gives me great pleasure to welcome you back to Your Property Rights Podcast. Hello, I'm Paul Rotherham. This show, as always, proudly brought to you by Private Property. Equally proud to be part of this project is Silna Stain, who joins me in studio today. Hello, Silna. Hey, Paul. How are you doing? Well, as I always am, I always feel so much better having you on this show because there's no way I could answer these questions myself. And I'm thrilled to have you as our expert on property law, your specific focus, rentals and evictions. True story. With SSLR Incorporated Attorneys, where you are the MD, today we're chatting about something that we've called hidden damage. I think anyone who has bought a home might be able to relate to this unless you've bought a brand new home, although I guess it could still happen there as well. This person writes the following. I recently purchased a property for 2150, so 2.15 million. So that's a sizable chunk of cash to be paying for a home. Upon renovations and moving in, we noticed metal panels that were covering up cracks on the walls. This was brought to the attention of the seller via the conveyances with no response. We have photographic evidence clearly showing the panels that were covering these cracks were then painted the same colour as the house at different points. We thought that the panels were covering exterior cabling, but no, it was worse. Instead, they were covering massive structural cracks. We were also given information from the neighbours advising of a wall collapse that happened on the property, which just so happens to be on the same side where the panels covered the cracks. Oh dear. This is a little bit like buying what you think is your dream car, driving off the forecourt and breaking down before you've even got home. And I can really feel empathy for this person because they say a property is, generally speaking, the biggest purchase you will ever make in your life. You've just put a sizable chunk of cash in. Now what? We've got a couple of questions that come to mind. The one question here that is from the listener, in fact, is if the seller deliberately covered up a crack with metal sheets and didn't disclose this, surely this should have been done. This wasn't noticeable on the viewing of the property. They should have been open and honest in this transaction. That's going to be the first question. The second question, and I think it brings this in, is the whole clause of foot stewards. We've heard it when it's applied to secondhand vehicles. And I would love to know from you today, Silna, whether that still applies to property. Where do we start here? So this is a fantastic question. First of all, I share your empathy with the purchaser and the listener because I see this often and it's a very sad situation. So I'm going to answer your questions starting with the second one, just because I'm being a rebel. So your second question relating to foot stewards. I'm actually going to start by just quickly explaining foot stewards. So foot stewards is clearly a Dutch law term. I mean, foot stewards doesn't even sound like anything other than superafricans. So it is a Dutch law term, which means you're selling something as is. So if there is something that's not right in the place you as the purchaser accepts that and you don't have a claim against the seller. But lucky for us, came the 1st of April, 2011. We have a new piece of legislation, which is not that new anymore, and the Consumer Protection Act. How old is that? Did you say 10 years? Ten years, the CPA. Yep. My goodness. It's been around for a while and people are still confused with it, which is, you know, that's why we have you on the show. It's a pleasure. And just to mention specifically, the foot stewards that we're chatting about now, the law that you are quoting and giving us this is specific to property or specific to foot stewards, period, just out of interest. Well, specific to anything that you buy, whether it's movable or immovable property, but the application of the Consumer Protection Act when it comes to foot stewards, I'm only going to love it to immovable property, because the law, they would change when it comes to your example, a car, compared to immovable property. And after all, this is brought to you by private property, not private cars. So we are talking about property. Cool. 100 percent. Yes. So foot stewards means you buying a thing as is. The Consumer Protection Act says if there is, if this property is solved in your ordinary cause of business, so you are an investor that does flipping is the term that they use. So you buy a property, renovate it and sell it on. That is in your normal cause of business. And if you, the flip investor, and I'm buying the property from you, you are definitely going, that transaction will be governed by the CPA. And I will receive the protection of the Consumer Protection Act as the purchaser, because you do this every day and you're going to know exactly how to put up a metal sheet to disguise. So I should know better, basically, as somebody who's doing this as my livelihood. 100 percent. Got you. Or in the context where you have an intermediary involved. So you and I are both private homeowners, we're not property investors, but we have an estate agent representing you as the seller or me as the purchaser for that matter. But in the context of a seller, now the CPA requires us to provide the purchaser with a document called the seller's disclosure form. What you have to do with this document is you have to disclose any defects. And if you hide a defect and you do not disclose that, the purchaser will have a claim against you for the damages suffered in terms of the Consumer Protection Act. Specific to just that defect. Specific to that defect. Now, even without a Consumer Protection Act, so say, for instance, you and I are private property owners, we're not property investors, and we are selling a property to each other. Now, in strict theory, this is not going to be covered by the Consumer Protection Act. However, which to its is still not a blanket protection for a seller that's trying to get rid of a sort of close to dilapidated building. Almost let's call it a defective product where you know that it isn't as it should be. Exactly. Saying it's footstool, it doesn't cover me for that. A hundred percent. Because I should have been a lawyer. You should have. You can't join me after this. Get get off air and join me in court. But something very important here is we have two different kinds of defects. We have latent and patent defects. So the one is a defect that you can clearly see. I can see looking at the walls in the studio that there are three holes that were drilled, probably we used to have a speaker there to put something up. I can see it clearly. And if I buy this property from your footstool, I can see the holes in the wall and I must deal with that. If I'll ever I know where this is going. There's wallpaper in the studio. If I wallpaper the wall to hide all the holes intentionally so you didn't realize half the walls gone, that would be naughty. Paul, don't do that. You can't join me as a lawyer anymore. Exactly. Exactly that. You've got it perfectly. And those are the only damages that you can claim then. Latent defects are the ones that you can clearly see. Patent defects are the ones that that you can't easily see. Or I've mixed it up now. No problem. So so your typical defects that you can't see, that that wasn't purposefully hid from the from the purchaser. For instance, termites. So termites is a massive problem. My example of your mic drill holes. Yes, it's a good one because it's leaning against the wall. Termite, you won't know. You won't know if there are a massive termite issue in your property. And by not disclosing that, you didn't purposefully do that. So that is a defect that you as the seller didn't know about. And if that is then a massive problem for the purchaser, it's fine. It's much of the muchness. It would have been it would have been damages in the seller's hands as well. Yes. Now you are the purchaser, property transferred a month ago. And now you have this massive problem, no claim against the seller. However, if you can see that there was fresh paint over the evidence of the termites or the whatever, rising damp is a very good example. Recently painted, so it looks amazing. You would be able to claim from the seller. And I think that's what we've got here, because according to this listener and I'm reading now the notes that came into us here at Private Property, it says we have photographic evidence clearly showing the panels that were covering the cracks and then painted the same color. I'm not a lawyer. I'm learning from you as quickly as I can. To me, that's the giveaway right there. You can join me after this in the firm. You've got the property lawyer down your 100 percent correct. In terms of insurance for something like that. And I know you're not an insurance specialist, but let's assume that there is something that I haven't seen. Let's assume that up in the ceiling somewhere there is, for argument's sake, a roof rafter that is literally about to collapse because it's been chowed by termites. Nobody knows this in good faith. The agent, the buyer, the seller, nobody had a clue because you can't literally hide that like to buy your house. Do you mind if I climb in your attic and get in the roof? It doesn't work like that. If something like that happens shortly after purchasing a property, what's the course of action that should be taken? Because insurance companies seem to be very good at distancing themselves, particularly when it comes to large claims. Legally speaking, where would I stand as someone like that? Legally speaking, as the purchaser and post-registration of the property as the owner of the property, you have an insurable interest and your insurance company. Luckily, I did have some insurance slowly. Insurance company would be liable because those are damages suffered in your hands. And whether it was something that's been brewing for some time, if both you and the seller were really bona fide unaware of this, that the insurance company, well, should theoretically and depending now, obviously on their policy documents, will have to pay for those damages suffered because it was too damaged, suffered in your hands. In closing then, Silne, as I say, you are the legal expert. This particular listener who I just from reading it, I get a very distinct idea that this was an intentional cover up. What should this listener do here? So it would be ideal if it never happened. So obviously, my insights was always 20-20. So let me help for future. And then I'll come back to this particular listener. When you buy a property, you just said you don't buy a property and then, you know, get into the roof and everywhere. I actually do recommend that. You're joking. And you and me, I'm actually not. I'm actually serious for change. OK. You and I will not be able to inspect a property properly. We don't know what to look for. And I, every day of the week, recommend that you get a property inspector, a professional property inspector, inspecting your inspecting the property that you want to put an offer in. Before you sign on the dotted line. Before you sign on the dotted line. Are you allowed to do that? Hundred percent. So and I would guess at this point, if the seller objects, it's even more of a red flag, because then you need to think to yourself, well, hang on, if you are happy about the property you were selling me, you'd be quite happy for me to have it inspected because the inspection takes place under the buyer's account, doesn't it? Exactly. OK. Exactly. And you as the potential purchaser, get a property inspector to inspect the property. They get into roofs. I have quite a few property inspectors that I have good relationships with. And they can climb into roofs. They will find the weirdest thing, that little leak that you didn't notice, that termite, that wiring situation where you're getting your electric compliance certificate. But in fact, the first time you get your own electrician out, the electrician says, oh, my goodness, I'm just grateful nobody got electric, you took it here. And definitely always get your your professional property inspector before you make an offer. But for this particular listener, it's too late now, the horse has bolted. And in this context, I would definitely depending on the content of your offer to purchase, depending on who the parties were, were they an agent, were they not? Was the seller doing this in his normal in his ordinary course of business? I do suspect that you do have a claim against the seller. I would advise that you go to an attorney, please, a property attorney that understands this part of the law, the guy that bailed you out the last time and that your divorce might not be this well versed with with property law, get to a property lawyer and let them assess your case before you jump into litigation. Final question, Silne, and this is something that I think we could really go even deeper into. But final question, how long do I have? I've purchased a home in this instance. This was a recent purchase. That was the opening statement from our listening here. I recently purchased a property. But sometimes you don't notice things straight away. Sometimes you could buy particularly a slightly larger property and only notice it three, four, five months a year down the line. Is there a time period here that's considered a reasonable time frame for saying, well, hang on, wait a minute, you must have known about this. Well, so to prescription, a prescription, meaning that your claim lapses, that happens after three years of the claim arising. So now when it comes to defects in properties, when did your claim arise only when you discovered it? Yes. Now, if you only discover a defect two years after you took after you took ownership of the property. Now we need to go back and try and prove when the damage was caused. So it depends on the kind of damage, what is it? And you might need to get an expert as an expert witness just to confirm when the damage occurred so that the damage occur in your hands or in the seller's hands. And these are long and protracted legal battles. If it's something obvious, I would do it within wait for this legal term. A reasonable time. What is a reasonable time? I do not know. It depends on the kind of of damage that we're talking. And you would know your gut would tell you, oh, my goodness, these termites have been here for ages. They basically have a right to the property by now, which, by the way, never happens. You can't just checking. And you can see they've been here forever or you see, oh, goodness. OK, I just moved in. I took these steel plates off. Clearly, this has been active leading and I will then immediately act. An intentional cover up. Wow. We'd love to hear your stories. Is this something that you have been, if I can use the expression, a victim of? Is it something where you've recently purchased a property only to have your dream shattered as you've seen panels that have been put up covering what is clearly a structural crack? We'd love for you to share those experiences. And at some point, maybe Silner will even be able to assist you. That's what this show is all about. Not only creating awareness around different property matters, but also helping you, helping you to to kind of fight the fight as it were in inverted commas, courtesy of private property. We're proud to bring you your property rights podcast. I'm Paul Rotherham, my guest today. And in fact, our resident legal expert for the show, Silner Stain. Silner, thanks so much. Very insightful today. And it's always such a pleasure having you. Thank you. Thank you, Paul. It's always nice to be your property rights podcast is proudly brought to you by Private Property. Leave a comment or ask a question to join the conversation.