Court rules ‘stunning’ home ads are not legal guarantees
Advertising a property as “stunning” or “beautiful” is not a legal promise, as in property transactions, these words are not guarantees of structural integrity, safety, or regulatory compliance.
This is according to Johlene Wasserman, Director of Community Schemes and Compliance at law firm VDM Incorporated, who unpacked a recent court ruling dealing with these issues.
A collapsed wooden deck, a renovated waterfront home, and more than a decade of legal proceedings have culminated in the important high court judgment that brings long‑awaited clarity to estate agents, sellers, buyers, and the broader property market.
Wasserman pointed to the case of Fitzpatrick v Latsky N.O. and Others, where the Western Cape High Court has ruled in favour of an estate agent, his company, and the seller of a residential property, after finding that the plaintiffs failed to establish a prima facie case (on the face of it) for any of their claims.
“The ruling provides clear guidance on the legal meaning of marketing language, the scope of an estate agent’s duty, the strength of voetstoots clauses, and the limits of the Consumer Protection Act (CPA) in private property transactions,” Wasserman said.
The property was purchased in October 2013, and the deck collapsed about a year later. The judgment was only delivered last month – more than 12 years after the sale and more than eleven years after the alleged defect manifested.
The trial served before the court for nine days, spread across multiple years before judgment was handed down. Wasserman said the extended duration of the litigation underscores the high financial, emotional, and professional cost of property disputes, even where claims ultimately fail at a face value stage.
The matter was decided on an application for absolution from the instance (dismissal of the claim because the plaintiff has failed to produce sufficient evidence to establish a prima facie case) at the close of the plaintiffs’ case. The court held that it could not rule in favour of the plaintiffs in this case.
Wasserman explained that a central issue was whether describing a property as “stunning” or “beautiful” during marketing could amount to a legally actionable misrepresentation. “The court confirmed a long‑standing principle of law known as sales puffery. Sales puffery refers to enthusiastic, promotional language expressing opinion rather than fact. In property transactions, words such as ‘stunning’, ‘beautiful’ and even ‘in excellent condition’ are not guarantees of structural integrity, safety, or regulatory compliance”.
Accordingly, the court found that the estate agent made no representations of fact about the structural condition of the decks, the absence of latent defects or compliance with building plans.
Wasserman said the judgment provides important clarification on the scope of an estate agent’s duty of disclosure, particularly under the law applicable at the time of the sale. “Estate agents are required to disclose material facts within their personal knowledge, but they are not expected to conduct engineering inspections or uncover hidden structural defects unless special circumstances exist”.
She added that expert evidence showed that the defects were latent and not detectable by a layperson. As a result, the agent could not be held liable for failing to identify or disclose them.
Wasserman further explained that the property was sold subject to a voetstoots clause. To defeat the clause, a purchaser has to prove actual knowledge of the defect by the seller and deliberate concealment with intent to defraud.
“The court found no evidence of either. Even the plaintiffs conceded that the seller was honest and likely unaware of the defect”. The court also dismissed all CPA claims, finding that no misleading or deceptive marketing was established. While the plaintiffs claimed the cost of replacing the decks, the court clarified that the correct measure is the reasonable cost to cure, not replacement or upgrading, Wasserman said.
