In the case of a voetstoots claim; a key element is that the purchaser will have to prove that the seller was aware of the hidden defect. This is very difficult and most purchasers will fail to do this. However, the Mandatory Disclosure, the first document the seller is requested to sign, asks if he was aware of any defects. So he goes on record as having declared what he was aware of.
He has two choices ;
- He should be honest and disclose what he was aware of; then that will govern the outcome of the purchaser’s claim. If he says he was aware; then one of the key elements that the purchaser, would otherwise have to prove, is satisfied.
- If he lies; and is caught out by his previous disclosure, in which he said he was not aware and if it is subsequently proved that he was aware; it will become a double fraud.
To conclude Mandatory Disclosure helps the purchaser, by relieving him of the burden of having to prove that the seller was aware.
Denoon Sampson is the Director at Denoon Sampson Ndlovu Inc, currently ranked the ‘number 1’ top performing conveyancer by First National Bank Limited. He has 30 years of experience as a conveyancer, specialising in the full spectrum of property-related law and is often called upon to give talks or contribute content on related matters.