Important court ruling for South Africans who want to buy a home

A Western Cape High Court ruling confirmed that flattering property descriptions such as “beautiful” and “stunning” are not legal guarantees, placing the responsibility on buyers to properly inspect properties.

This is according to CDH Director Claudette Dutilleux, Associate Gabriella Schafer, and Candidate Attorney Sthembiso Chauke.

They said this ruling, delivered in the case of Fitzpatrick and Another v Latsky NO and Others, is a reminder that promotional descriptions do not constitute warranties as to a property’s integrity or safety.

It also demonstrates that prospective purchasers remain obligated to conduct their own inspections prior to purchasing a property.

While attractive wording may encourage interest, it does not shift legal responsibility or reduce the buyer’s need for due diligence.

“South African courts have consistently held that prospective purchasers are expected to take reasonable steps to protect their own interests,” Dutilleux, Schafer and Chauke said.

In the Fitzpatrick case, the buyers tried to hold the seller and the estate agent liable after discovering defects in a residential property following transfer.

The property had been marketed using favourable descriptions such as “beautiful” and being in “stunning condition”, they explained.

“However, upon occupation, a wooden deck collapsed, revealing latent structural defects and non‑compliance with applicable building regulations.”

The buyers alleged that the favourable marketing descriptions used during the viewing process amounted to misrepresentation because they relied on them when deciding to proceed with the purchase.

Dutilleux, Schafer and Chauke explained that the Fitzpatrick dispute raised a recurring question in property transactions.

The court had to decide to what extent prospective buyers can rely on the language used during the marketing and viewing of a property when defects emerge after the sale and transfer have taken place.

The Western Cape High Court answered this question decisively in favour of the sellers and estate agent and reinforced long‑standing principles regarding sales puffery, buyer inspections and the limits of post‑sale liability.

Sales puffery is not a legal guarantee

Central to the court’s reasoning for the judgment was the established distinction between actionable representations of fact and “sales puffery”, Dutilleux, Schafer and Chauke said.

Puffery refers to general commendatory or promotional statements, often subjective in nature, used to market goods or property. Words such as “stunning” or “beautiful” typically fall within this category.

The court confirmed that such descriptions do not amount to representations about a property’s structural integrity, safety or compliance with regulatory requirements.

“These words express the opinion of the estate agent or owner and cannot reasonably be understood as guarantees that a property is free from latent defects,” they said.

“The court’s reasoning makes it clear that disappointment arising from a mismatch between marketing language and post‑purchase reality does not translate into legal liability.”

However, Dutilleux, Schafer and Chauke made it clear that this principle needs to be applied on a case-by-case basis.

It is generally accepted that words such as “stunning” and “beautiful” constitute puffery as they are subjective aesthetic opinions and would not amount to a misrepresentation.

Importantly, though, descriptors such as “pristine/original/perfect” may imply verifiable factual content on the part of the seller and/or estate agent.

The scope of liability remains limited

Dutilleux, Schafer and Chauke clarified that estate agents are still required to disclose material facts of the property for sale within their personal knowledge.

“However, they are not expected to conduct technical investigations or identify defects that would not be apparent to a layperson,” they said.

Similarly, when immovable property is sold subject to a voetstoots clause, a buyer bears a heavy burden of proving that the seller had knowledge of a latent defect and deliberately hid it with fraudulent intent.

In Fitzpatrick, the court found no basis to infer such knowledge or intent. Accordingly, the plaintiffs were not successful in their claims.

“This case highlights the risk for a prospective purchaser in placing undue reliance on property marketing descriptions when making purchasing decisions,” Dutilleux, Schafer and Chauke said.

“Attractive wording may encourage interest, but it does not shift legal responsibility or reduce the need for due diligence on the purchaser’s part.”

They noted that South African courts have consistently held that prospective purchasers are expected to take reasonable steps to protect their own interests.

This includes properly viewing a property, asking relevant questions and, where appropriate, ensuring inspections by suitably qualified professionals before making an offer to purchase.

“Where buyers elect not to do so, the law is slow to intervene once defects come to light, particularly in the absence of fraud or deliberate misrepresentation by the seller.”

Dutilleux, Schafer and Chauke added that Fitzpatrick is not a departure from existing authority but is rather a contemporary confirmation of a settled legal position.

“For prospective purchasers, the decision reinforces that favourable marketing language should be approached with caution and understood for what it is: an invitation to view, not a guarantee of condition.”

“Ultimately, while the law continues to guard against fraud and dishonesty, it does not insulate buyers from the consequences of failing to properly inspect property before committing to the purchase.”