Comment - Your property rights – when God is acting.

DDuring my first 10 years in the property business, I came to the conclusion that one of the most tricky questions that an estate agent has to answer is “does the roof leak or not”?

For one or other reason - maybe Murphy can answer this one - after every good storm a number of new homeowners will phone to say that they discovered a leak in the roof. Confronting the previous home owner might turn a good estate agent into believing that it must be an act of God to make roofs suddenly leak like this.

So as a good citizen who abides by the law, (and a good estate agent as well) I invented a list that every homeowner had to sign before I would dream of selling their home. The list included the question: Does the roof leak? Well the problem was solved and I never ever had any calls again with complaints of leaking roofs.

Now with the recent storms wrecking havoc down our precious coastline, God is acting and in real terms. The South African law recognises ‘an act of God’; whether you are a buyer or a seller, when you are amidst a property sale and God strikes, you may better know the terms of how our law recognises a disaster and how it influences your rights.

What happens when a storm strikes? Firstly when the property is close to the sea, damage can be done to the improvements, secondly half the stand can disappear into the sea, and thirdly half the stand plus half the property can disappear into the sea. Extreme cases are used to prove a point, so we got the experts to give us a view on these extreme cases.

Melanie Coetzee from STRB attorneys in Cape Town gave her view on how it impacts on the contractual liability of the parties? Let us say a buyer signed an agreement and the seller accepted the agreement. One month later severe storms destroy half of the property.

In legal terms ‘an Act of God’ refers to a natural event with a force of nature over which no one has control. In recent years not only natural disasters but also man made disasters have been included under events referred to in our law as force majeur.

Force majeur is seen as a defence in our law for the non-performance of one party due to the fact that the event took place. A purchaser can only rely on this defence if he has complied with all of his obligations as per the initial contract. If the purchaser was in breach prior to the event, the purchaser will remain in breach and the seller will have a claim against the purchaser.

When a property and the land are swept away by a flood, the seller is clearly not in a position to deliver the property in the same condition as it was before. It is impossible for the seller to perform his obligation and the buyer will not be able to insist.
Such a contract will be set aside and the purchaser will receive his money back. When half of the land has been swept away but the property is in place, the transaction is still possible. Agreement must be reached about the extent of the damage and the parties will weigh up the possibilities from both sides. The purchaser cannot simply cancel the transaction.

The best advice for landowners who are not in the process of selling, but have half of their property swept away, is to contact the authorities and have the property re-surveyed. New dimensions of the property will then be registered and the property can be put up for sale accordingly.

The complete story in our law books are much longer and comprehensive, however with more and more global disasters, and more Katrina’s, Gustav’s and Ike’s visiting the coastlines, property owners should be made aware of their rights should a disaster strike.

By Linda Erasmus
CEO Fine and Country SA
Facts received from Melanie Coetzee
Smith Tabata Buchanan Boyes Cape Town
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