Question re liability under occupational rent

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Nickster

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Hi all,

Quick question: I'm currently paying occupational rent while waiting for the transfer of a property I purchased. With all the rain in CT recently, we've noticed what looks like rising damp.

The OTP includes a voetstoots clause, but there was no disclosure of any damp issues, and since transfer hasn’t taken place yet, doesn’t the risk still lie with the current owner?

Has anyone dealt with something similar before? I’m getting a damp expert out tomorrow to take a look, but the seller is
a difficult old boomer...
 
Been in the same situation a few times when buying property.

Damp comes with time.

My honest advice. Get to the source, and get it fixed.
 
zerocool2009 said:
Been in the same situation a few times when buying property.

Damp comes with time.

My honest advice. Get to the source, and get it fixed.
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But is the current owner responsible? We have not yet taken transfer.
 
Nickster said:
But is the current owner responsible? We have not yet taken transfer.
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Not having been in this situation but technically you are a tenant and the owner is the landlord, so my guess would be that until the transfer goes through it is his issue to resolve.

What if you didn't take occupation, viewed the house, and upon moving in there could be said without reasonable doubt that the damp occurred between the time you viewed and the time you took up residency?

Maybe speak to your estate agent as well for clarity as IANAL but this would be my best guess.
 
Kick up a fuss. Check the OTP, but you take the property voetstoets at the moment of transfer. So if this is not in the property condition report and properly declared, current owner has to fix.
 
3WA said:
Kick up a fuss. Check the OTP, but you take the property voetstoets at the moment of transfer. So if this is not in the property condition report and properly declared, current owner has to fix.
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Yes I did and the seller is supposed to maintain the property in the same state from date of signing the otp to date of transfer.

Voetstoots says property is “sold” as is, however the property has not been sold yet…
 
Is it an older house in CT southern suburbs by any chance?

If so damp is nearly guaranteed and the seller will rather walk away than pay the cost of remediation, which could be R100k+.
 
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Nickster said:
Yes I did and the seller is supposed to maintain the property in the same state from date of signing the otp to date of transfer.

Voetstoots says property is “sold” as is, however the property has not been sold yet…
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The ongoing saga about voetstoots. It means, with defects. If not, and I say NOT, recorded in the otp, it isn’t the seller’s issue

Damp doesn’t start in a few weeks.

Sterkte!

Ps: you can ask the seller. Maybe he is kind enough to help, or comply with your request.
 
zerocool2009 said:
Get to the source, and get it fixed.
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Not so simple. Depends on source and severity. Leaking gutters, vs ground levels with a high water table, is a big difference.

But determining which it is is mostly voodoo. Those moisture meters OP is gonna see a lot of tomorrow are not much better than dousing rods.

Meanwhile if it's mild and has no knock on effects like mould, what's really the issue? Paint is cheap compared to stripping and replastering walls, and it lasts nearly as long if the underlying cause was not identified and fixed, which it won't be, especially if the seller is paying.
 
RedViking said:
Owner must fix it. You are not the owner yet.
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Agreed. Property or the law thereto is not my specialty, but reading the OTP and the bit where it says “sold” under the voetstoots clause is what could be in my favour. Also under the occupational rent bit it says the owner “must” maintain the property in the same state as on the date of signature to date of transfer. Now we had a pre home inspection where no rising damp was found. This came after the fact so in my mind the property is not in the same state. However, depending on the cost etc to fix the issue it may not be worth pursuing a claim against the owner. Will have wait and see. Litigation is expensive and I know seeing as I do it every day.
 
voetstoots = the property is sold as is with all defects (latent & patent) this is at time of acceptance of the OTP
now the sticky part, the difference between the two defects is one is clearly visible, so lets say a big crack on the wall or a missing tap, broken door etc etc etc. The other is a defect that would be hidden or hard to identify, normally an expert would have to be called in to confirm this. Both of the above are covered under voetstoots.

The only time a defect is NOT covered is if the defect, which would be the latent one, has been concealed by the previous owner, which would indicate the owner knew about this defect and tried to cover it up to deceive you. This kind of defect is almost impossible to prove as it would come down to their word vs yours.

In closing, you are wasting your time, just fix it yourself.
 
Wrath of Khan MD said:
voetstoots = the property is sold as is with all defects (latent & patent) this is at time of acceptance of the OTP
now the sticky part, the difference between the two defects is one is clearly visible, so lets say a big crack on the wall or a missing tap, broken door etc etc etc. The other is a defect that would be hidden or hard to identify, normally an expert would have to be called in to confirm this. Both of the above are covered under voetstoots.

The only time a defect is NOT covered is if the defect, which would be the latent one, has been concealed by the previous owner, which would indicate the owner knew about this defect and tried to cover it up to deceive you. This kind of defect is almost impossible to prove as it would come down to their word vs yours.

In closing, you are wasting your time, just fix it yourself.
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This man needs a "bell's" ! Spot on!
 
There should have been a disclosure form filled put from the seller at time of sale wrt latent defects...present owner is responsible until transfer takes place..Put your complaint in writing before transfer.if it's close to transfer maybe trying asking the attorneys if it's possible to delay transfer until sorted(not sure if this is possible)
 
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Rising damp? Get out of the deal as quick as you can.
If you cant get out the deal, sell the house as quick as you can.
 
Wrath of Khan MD said:
voetstoots = the property is sold as is with all defects (latent & patent) this is at time of acceptance of the OTP
now the sticky part, the difference between the two defects is one is clearly visible, so lets say a big crack on the wall or a missing tap, broken door etc etc etc. The other is a defect that would be hidden or hard to identify, normally an expert would have to be called in to confirm this. Both of the above are covered under voetstoots.

The only time a defect is NOT covered is if the defect, which would be the latent one, has been concealed by the previous owner, which would indicate the owner knew about this defect and tried to cover it up to deceive you. This kind of defect is almost impossible to prove as it would come down to their word vs yours.

In closing, you are wasting your time, just fix it yourself.
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This "

The seller can just say he didn't know.

Remember if a wall falls over tonight, it's still not their responsibility.

The best OP can hope for is some sort of ex gratia compromise, but legally, nah.
 
When i purchased all walls were 100% as the seller had them painted. Then damp issues started after a few months later.
If the seller was honest i would have obviously negotiated harder as dampness is an expensive problem to have .
Nothing i can do now .
 
PhireSide said:
Not having been in this situation but technically you are a tenant and the owner is the landlord, so my guess would be that until the transfer goes through it is his issue to resolve.

What if you didn't take occupation, viewed the house, and upon moving in there could be said without reasonable doubt that the damp occurred between the time you viewed and the time you took up residency?

Maybe speak to your estate agent as well for clarity as IANAL but this would be my best guess.
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This is technically true.
I've been through it and it was a bitch to get the old owner to do anything. The transferring attorneys eventually told him they will not get the funds released until he's fixed all the issues. As some of those issues were holding up the municipalities sign off.
 
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