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When does Puffery become a Misrepresentation?

Jun 17, 2026

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The marketing of property always involves a degree of salesmanship. Property Practitioners routinely describe homes as “stunning”, “immaculate” or “beautiful”, and purchasers generally understand this for what it is – enthusiastic promotion rather than a warranty on the property’s condition. The law draws a clear line between this kind of “puffery” and an actionable misrepresentation. But where exactly does that line fall, and when can flattering sales talk land an agent or a seller in trouble? The recent judgment in Fitzpatrick and Another v Latsky N.O. and Others ([2026] ZAWCHC 80) offers some useful guidance on this point.

Puffery versus Misrepresentation

Puffery is the subjective, exaggerated praise used in marketing to sell products. Reasonable purchasers expect this kind of language from sellers and do not treat it as a statement of fact and accordingly, it cannot be relied upon to establish a legal claim. 

A misrepresentation, on the other hand, is a false statement of material fact that induces a party to contract. Where a purchaser is induced to purchase by such a statement, they may be entitled to rescind the contract or to claim for damages suffered where fraud or negligence can be proven.

Case overview

In the Fitzpatrick matter, a Property Practitioner marketed a property as being in “stunning” and “beautiful” condition. The purchasers bought the property and, several months later after taking transfer and occupation, the upper wooden deck collapsed. Expert evidence revealed that the decks had been built without approved plans and did not comply with the National Building Regulations. The purchasers sued the Property Practitioner and the seller. arguing, amongst other things, that the description had induced them to believe the property was structurally sound and would require no remedial work.

The court held that words such as “stunning” and “beautiful” are subjective opinions reflecting the property’s appeal and evident renovations – and are not assertions of structural integrity, plan compliance, or the absence of latent defects. Such language amounted to puffery and could not, on its own, found a claim. The agent’s duty of disclosure extended only to material facts within his personal knowledge and he was not under a general duty to conduct technical investigations to uncover defects that were not apparent to a layperson.

When does puffery cross the line?

Whether a commendation remains harmless puffery or becomes an actionable misrepresentation turns on the following two elements: 

  1. Language and;
  2. Knowledge

The first element looks at the words themselves, and whether they go beyond subjective opinion and edge towards a representation of fact. In this regard the court drew a useful distinction between “stunning”, which is plainly subjective, and a word such as “pristine”, which implies a verifiable factual state that can be objectively tested against a reality of structural defects. The second element looks at the Property Practitioner’s state of knowledge, and whether the statement was made while knowing – or negligently failing to know – of a material defect that contradicts it. The court confirmed that where a Property Practitioner describes a property as being in “stunning condition” while aware of, or negligently not disclosing, a structural defect, the statement is no longer mere puffery but an actionable misrepresentation. An Property Practitioner cannot escape liability simply by pleading ignorance of a defect that a reasonable agent, exercising due care, ought to have discovered or suspected. Property Practitioners should therefore take care to ensure that their marketing language expresses genuine opinion and does not gloss over, or sit at odds with, what they know or ought reasonably to know about the property.

Conclusion

Sellers and Property Practitioners are certainly at liberty to market a property attractively, but they should never allow marketing phrases to cross over into a factual assurance that cannot be substantiated. The safest course is to confine marketing to genuine opinion and to disclose, accurately and in writing, all defects within one’s knowledge. Purchasers, in turn, should not treat flattering descriptions as warranties – the responsibility to investigate the true condition of a property remains with them.

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Daniel Hodgeson

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