As published in the Property Professional: Selling homes with a grisly heritage: what to disclose?

As published in the Property Professional:

Horror stories

Remember the Amityville Horror house? Fifty years after the murders, it has been sold four times, with the first buyers only living in the property for 28 days, claiming they were terrorised by ongoing paranormal activity.

In the 1920s, South Africa’s notorious serial killer, Daisy De Melker, was convicted of poisoning her son. Although acquitted of killing two of her husbands, five hours before she was hanged, she confessed to murdering them too. It has been said that her ghost haunts her house in Turffontein, with some claiming she can be seen peering out of an upstairs window at 6 pm every night.

Fanciful, perhaps, but stories abound about homes with a grisly past. Closely aligned to the haunted house category are historically valued or heritage homes, and dare we suggest, properties where people have died, albeit naturally.

To what extent should a property agent delve into investigating the past of a ‘property and/or any stigmas associated with one, and how much of this history are they obligated to disclose?

Legal stance

Meyer de Waal, director of MDW INC, clarifies the legalities. “The disclosure of information must be read in the context that most, if not all, properties are sold “voetstoots” and thus sold ‘as is”. This remains the position unless the seller is a property developer or if the property is sold in the ordinary course of the seller’s business and is in accordance with the Property Practitioners Act (PPA) that was introduced on 01 February 2022.”

The PPA also requires that an agent exercises a duty of care towards their client, alongside the standard practice of producing an ‘Immovable Property Condition Report’, completed by the seller and disclosed to the purchaser. “However, the Immovable Property Condition Report primarily focuses on identifying defects of the property rather than addressing a stigma that is associated with it,” says de Waal.

This means that no disclosure around homes with a history is a legal requirement, but de Waal feels it should be part of the duty of care. “Should a property’s history be known to the general public or available on the public domain such as any type of media or social media, the seller should be made aware that any negative association to the property may impede its marketing and opportunity to realise the best sales price.”

De Waal provides an example. “Information required by prospective buyers was influential in the case of the Pretoria Capital Park house, where paedophile serial killer Van Rooyen and Haarhoff hid children they abducted and killed between 1988 and 1989.

While the facts in this case were proven true, it is essential to note that many property histories may be based on rumour or folklore. Under the PPRA’s Code of Conduct, estate agents are obligated to convey to a purchaser or lessee or a prospective purchaser or lessee of immovable property in respect of which a mandate has been given to him to sell, let, buy or hire all facts concerning such property as are, or should reasonably in the circumstances be, within his personal knowledge and which are or could be material to a prospective purchaser or lessee thereof.

“Regard should, therefore, be given to the absolute facts and tested against the duty to disclose. No buyer wants a surprise after purchasing a property and may want to ‘get out’ of a property transaction,” says de Waal.

Historic and heritage properties

One needs to consider the impact any history may have on the potential buyers, who may be put off by any negative stigma to a property or the owner’s history. “However, if the property has a significant noble historical value, it may make the property more desirable and increase the price,” says de Waal.

Roger Lotz, franchisee of Rawson Properties Helderberg, steps in here, indicating that heritage homes carry a premium price point. “Many heritage properties occupy prime locations on larger-than-normal grounds. They also tend to have more spacious rooms with elegant proportions and high ceilings, often featuring architectural detailing in costly finishes by today’s standards.

“Even South Africa’s more modest and affordable heritage homes (such as those found in the Helderberg and suburbs like Cape Town’s Harfield and Pinelands) tend to have charming and hard-to-replicate design features that maintain a certain timeless appeal. As a result, their desirability and value typically appreciate very well.”

Heritage or historical homes do come with a burden, though. Lotz highlights South Africa’s legislation protecting heritage buildings. “Extremely old properties or properties with known historical significance are subject to any property over 60 years of age. In the Western Cape, that covers a huge percentage of our residential properties, which means most home renovations will need to go through some level of heritage approval.”

Death and burial plots

The issue is a little vaguer when it comes to a natural death in the house, or if there is an ancestral burial plot on the property. De Waal says that in California, USA, real estate law mandates that sellers must disclose any human death that occurred within the past three years. “Failure to disclose this information can lead to the buyer having a right to challenge the sale. In many other USA states or countries, such disclosure is not required, nor in South Africa, as per our knowledge and research.”

Burial plots usually require the seller to obtain permission for removal. Still, regardless of whether these are to be removed or not, buyers should be made aware of the status in the case of a potential claim at a later date by ancestral families.

Buyer onus

Whether grisly, historical or the scene of a death, de Waal says, buyers should be made aware of what they are signing up for, although ultimately, the onus remains on the buyer to conduct thorough research as to the condition of the property and any potential stigma’s associated to it. In the words of one of the MDW INC agents, the best way forward relative to a property’s history, whether public or private, is “to ask why an owner wants to sell unless it has been broadcasted and known through media.”

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.