{"id":47582,"date":"2026-09-08T10:30:40","date_gmt":"2026-09-08T08:30:40","guid":{"rendered":"https:\/\/stbb.co.za\/dev2\/?p=47582"},"modified":"2026-09-13T10:03:30","modified_gmt":"2026-09-13T08:03:30","slug":"all-about-property-flirting-with-liability-can-marketing-a-property-as-stunning-land-you-in-hot-water","status":"publish","type":"post","link":"https:\/\/stbb.co.za\/dev2\/all-about-property-flirting-with-liability-can-marketing-a-property-as-stunning-land-you-in-hot-water\/","title":{"rendered":"All About Property | Flirting with liability: Can marketing a property as \u2018stunning\u2019 land you in hot water?"},"content":{"rendered":"

In the context of property transactions, marketing language is, by its nature, principally intended to present a property in an appealing manner. Accordingly, descriptions highlighting a home\u2019s character or features may understandably influence a potential purchaser\u2019s decision. South African courts have, however, consistently confirmed that property purchasers must exercise due diligence before concluding a sale. Delivered earlier this year, the Western Cape High Court\u2019s decision in Fitzpatrick v Latsky<\/em><\/u><\/a> provides agents, sellers, and purchasers with an opportune reminder: Promotional descriptions do not warrant the structural integrity, condition, or safety of a property.<\/p>\n

The facts: A \u2018beautiful\u2019 property, a collapsed deck, and a legal battle<\/strong><\/p>\n

The case arose from the purchase of a property in Marina Da Gama, Cape Town.<\/p>\n

In October 2013, an estate agent appraised the property and the purchasers subsequently bought it for R1.55 million and took occupation in January 2014.<\/p>\n

Approximately seven months later, the upper wooden deck collapsed.<\/p>\n

The purchasers alleged that latent defects had not been disclosed before the sale, including allegations concerning the construction of the decks and their compliance with approved plans. Expert evidence indicated that the decks as built did not conform to the relevant plans or National Building Regulations standards and that the defects were not readily apparent upon an ordinary inspection by the purchasers.<\/p>\n

Accordingly, the purchasers advanced a range of alternative claims against the estate agent, his close corporation, and the seller, including negligent and wrongful misrepresentation, several claims under the protective provisions of the Consumer Protection Act (\u2018the CPA\u2019), fraudulent non-disclosure, and a claim for a price reduction via the common law actio quanti minoris<\/em> remedy.<\/p>\n

The procedural context is important. The defendants applied for absolution from the instance at the close of the plaintiffs\u2019 \u2013 the purchasers \u2013 case. In assessing the claims, the question was therefore whether the purchasers had produced sufficient evidence upon which a court, applying its mind reasonably, could or might find for them on the essential elements of at least one claim. Ultimately, the court granted absolution in favour of all three defendants.<\/p>\n

\u2018Stunning\u2019 and \u2018beautiful\u2019: Where does marketing stop and misrepresentation begin?<\/strong><\/p>\n

Notwithstanding the purchasers\u2019 lack of sufficient evidence, the case provides critical guidance for estate agents, sellers, and purchasers alike \u2013 particularly concerning the dispute over descriptive terms, such as \u2018stunning\u2019 and \u2018beautiful\u2019.<\/p>\n

Indeed, the purchasers relied on the agent\u2019s depiction of the property as being in a \u2018stunning\u2019 or \u2018beautiful\u2019 condition. On face value, they understood this as indicating that the property was safe to occupy and would not require any remedial work. While the agent accepted using aesthetic commendation, he denied giving structural assurances and explained that his comments related to the property’s renovations and appearance.<\/p>\n

According to STBB KZN<\/u><\/a> Director and experienced conveyancer, Renelle Moodley<\/u><\/a>, the court drew an important distinction between commendatory marketing language and a representation of fact.<\/p>\n

\u2018In addressing the distinction between actionable misrepresentation and mere puffery, the court found that the use of descriptive words such as \u201cstunning\u201d or \u201cbeautiful\u201d constituted puffery, that spoke to the aesthetic commendation evidenced from the renovations to the property, rather than an assertion of structural integrity or compliance with building regulations,\u2019 Moodley<\/u><\/a> contends.<\/p>\n

Noting the importance of distinguishing between facts and marketing-oriented language, Moodley<\/u><\/a> goes further: \u2018Such general commendatory statements do not typically give rise to liability for misrepresentation as these words express the opinion of the estate agent or seller and cannot reasonably be viewed as guarantees that a property is free from latent defects.\u2019<\/p>\n

The judgment did not, however, hold that these words can never become actionable.<\/p>\n

To that end, the court specifically recognised that describing a property as being in \u2018stunning condition\u2019 could potentially attract liability if the agent knew, or was negligent in not knowing, about structural defects. In this case, the acute problem for the purchasers was the absence of evidence establishing the necessary elements required to prove a claim.<\/p>\n

Crucially, the court opined that there was no evidence that the agent had represented that the property was \u2018pristine\u2019 or \u2018would not require any remedial work\u2019 as pleaded. As stated, he asserted that his description concerned the visible<\/em> renovations and aesthetics \u2013 and the purchasers themselves accepted that the property was visually appealing.<\/p>\n

For Moodley<\/u><\/a>, this acutely highlights that persuasive wording \u2018may encourage interest, but it does not shift the legal responsibility or reduce the need for due diligence on the purchaser’s part.\u2019<\/p>\n

However, she cautions the necessity of applying this principle \u2018on a case-by-case basis\u2019 in line with the specific factual nexus. \u2018While it is generally accepted that \u201cstunning\u201d and \u201cbeautiful\u201d are subjective and aesthetic in nature, other descriptions like \u201cpristine\u201d and \u201cperfect\u201d may imply verifiable factual content on the part of the seller and\/or estate agent,\u2019 the Umhlanga-based conveyancer<\/u><\/a> says.<\/p>\n

\u2018Positive statements, which are known to be incorrect, made with the intention to misrepresent the true nature of the property and induce the purchaser to purchase the property, could expose the estate agent and seller to legal liability,\u2019 warns Moodley<\/u><\/a>.<\/p>\n

For prospective purchasers, the practical lesson is concretely summarised by the real estate expert<\/u><\/a>: \u2018Property transactions are governed by facts, not descriptive adjectives, and that notwithstanding the marketing terminology used, purchasers are obligated to take precautions to conduct the necessary due diligence in relation to the property before making an offer\u2019.<\/p>\n

Latent defects: The agent\u2019s knowledge still matters<\/strong><\/p>\n

Given that the transaction took place in 2013, the applicable statutory regime was the Estate Agency Affairs Act (\u2018the EAAA\u2019) and its accompanying Code of Conduct.<\/p>\n

On the facts, the court found that the previous regime did not require an estate agent to conduct technical or engineering investigations to uncover latent structural defects in the absence of special circumstances. Indeed, the defects were not apparent to a layperson, and there was no prima facie<\/em> evidence that the agent knew of them nor was he under a legal duty to discover such defects.<\/p>\n

Where special circumstances necessitate additional investigations, and in the absence of an exhaustive test, \u2018the estate agent must bring this to the attention of the prospective purchaser,\u2019 qualifies Moodley<\/u><\/a>.<\/p>\n

Importantly, the EAAA regime applicable to the transaction has since been superseded by the Property Practitioners Act (\u2018the PPA\u2019), which took effect on 1st<\/sup> February 2022 \u2013 a point expressly noted by the court. Today, section 67 of the PPA requires a property practitioner to obtain a mandatory disclosure form \u2013 Immovable Property Condition Report \u2013 from the seller and provide it to a prospective purchaser before an offer is made, with the completed form annexed to the sale agreement.<\/p>\n

The court was equally clear that the PPA\u2019s requirements cannot be retrospectively imposed on the impugned transaction.<\/p>\n

Cognisant of the financial and emotional cost of protracted legal disputes, Moodley<\/u><\/a> notes the critical importance of honest and accurate disclosure. \u2018Sellers must complete the report to the best of their knowledge and as truthfully as possible. It then becomes the purchaser\u2019s responsibility to perform a proper inspection of the property and, if necessary, to appoint a professional person skilled in such inspections,\u2019 she notes.<\/p>\n

The CPA: Protection against misleading conduct, not an automatic defect claim<\/strong><\/p>\n

In the alternative, the purchasers sought relief under several provisions of the CPA.<\/p>\n

For instance, they relied on section 41 of the CPA, which prohibits false, misleading, or deceptive representations in the marketing of goods or services. The purchasers, however, failed to establish a prima facie<\/em> breach because the agent\u2019s descriptions of the property as \u2018stunning\u2019 or \u2018beautiful\u2019 amounted to aesthetic puffery, not representations about its structural integrity or the absence of latent defects. Moreover, there was no evidence that the agent knowingly failed to disclose a material defect.<\/p>\n

In addition, the court rejected the purchasers\u2019 attempt to invoke section 61 of the CPA, which imposes strict liability for harm resulting from unsafe or defective goods on producers, distributors, and retailers, as a general remedy for misrepresentation. The court held that the agent had not \u2018supplied\u2019 the property in the manner contemplated in the Act nor did their claim for repairing the decks constitute \u2018harm\u2019 under section 61.<\/p>\n

Importantly, the court also held that the once-off private seller fell outside the CPA by virtue of the operation of section 5(2)(b).<\/p>\n

Voetstoots<\/em>: Protection against latent defects, but not fraud<\/strong><\/p>\n

Expectedly, the sale agreement contained a voetstoots<\/em> clause under which the seller warranted that there were no latent defects known to him and otherwise sold the property in its existing condition.<\/p>\n

The subsequent emergence of a latent defect is insufficient to overcome the protection offered by the clause. As reaffirmed by the court, \u2018proof of the seller\u2019s actual knowledge of a latent defect in the property and their deliberate concealment of such defect, with fraudulent intent, is required to defeat a voetstoots<\/em> clause,\u2019 argues Moodley<\/u><\/a>.<\/p>\n

While the purchasers relied partly on \u2018quick-fix\u2019 work undertaken by the seller to argue that he must have known about the defects, the court rejected the inference of fraud. \u2018In this case, documentary evidence from the 1978 records of the City of Cape Town indicated that there was compliance with municipal planning requirements, which would have led any lay owner to believe that the structures on the property were lawfully constructed,\u2019 notes Moodley<\/a>. Instead, the repairs were \u2018evidence of ordinary maintenance rather than an acknowledgment of fundamental structural problems,\u2019 observes the experienced conveyancing attorney<\/u><\/a>.<\/p>\n

Acknowledging the difficulty of establishing prima facie<\/em> fraudulent conduct, Moodley<\/u><\/a> nevertheless offers sage advice for owners contemplating a sale: \u2018If you are aware of a latent defect in your property, you must disclose it to prospective purchasers in order to avoid unnecessary and costly litigation down the line.\u2019<\/p>\n

Conclusion<\/strong><\/p>\n

While the Fitzpatrick<\/em> judgment does not depart from established law, it reinforces the legal principles applicable to misrepresentation and the discovery of latent defects within the context of property transactions. Critically, it is a necessary reminder that marketing descriptions are not, by themselves, warranties of a property\u2019s structural safety or condition. For agents and sellers, distinguishing carefully between what is attractive, what is observed, what is actually known, and what requires professional verification is essential.<\/p>\n

For sound legal guidance with all property-related matters, contact our experienced team today<\/u><\/a><\/strong>.<\/p>\n

This content is protected by copyright. If you wish to copy or reproduce our content on your own platform or website, please ensure that proper credit is given to STBB, along with including a link to this article<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In the context of property transactions, marketing language is, by its nature, principally intended to present a property in an appealing manner. Accordingly, descriptions highlighting a home\u2019s character or features may understandably influence a potential purchaser\u2019s decision. South African courts<\/p>\n","protected":false},"author":364,"featured_media":47576,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_exactmetrics_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[192,98,93,137],"tags":[],"class_list":["post-47582","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all-about-property","category-articles-published-litigation-and-dispute-resolution","category-articles-published-property-law-and-conveyancing","category-latest"],"acf":[],"yoast_head":"\nAll About Property | Flirting with liability: Can marketing a property as \u2018stunning\u2019 land you in hot water? - STBB<\/title>\n<meta name=\"description\" content=\"When can marketing language attract liability for misrepresentation in property sales? 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