PROPERTY DEFECTS SIMPLIFIED: AN OVERVIEW FOR BUYERS AND SELLERS

PROPERTY DEFECTS SIMPLIFIED: AN OVERVIEW FOR BUYERS AND SELLERS

Buying a property is an exciting endeavour, but it is crucial to be aware of potential issues that could turn your dream home into a living nightmare. One such concern is the presence of defects, specifically PATENT and LATENT defects. Knowing the difference between the two and understanding your obligations and rights as a Seller or Purchaser, is vital for a successful property transaction. In this article, we’ll explore the distinction between the two, and shed light on the rights, obligations and potential remedies for both parties.

WHAT ARE PATENT DEFECTS?

Patent defects refer to visible flaws that can be observed during a reasonable inspection. 

These defects are apparent to the naked eye, such as cracks in the walls, chipped tiles, or broken windows. As these defects are visible, the purchaser can easily identify the defect and negotiate with the seller to request them to either repair, or as part of a condition of the sale or potentially request a discount on the purchase price equal to the cost of repair. 

WHAT ARE LATENT DEFECTS?

Latent defects on the other hand, are not visible to the naked eye, and are only discoverable through disclosure, expert analysis or when they manifest.

In most instances latent defects only present themselves as an emergency long after the Purchaser has received transfer – such as a leaking roof after heavy rain or rising damp caused by faulty plumbing or old pipes. Regardless of the source, these defects can wreak havoc in your dream home, causing substantial inconvenience and costly repairs.  

WHAT IS THE SELLER’S OBLIGATION?

The Property Practitioners Act 22 of 2019 which came into effect on 1 February 2022, states that;

‘A Sales Agent may not accept a Mandate from a Seller unless they have completed a disclosure form detailing the property’s defects’ – which ultimately forms part of the sale agreement. This accordingly protects the Purchaser, by compelling the Seller to disclose all known defects in the property and assists in creating transparency regarding the condition of the property.

HOW CAN A SELLER PROTECT THEMSELVES AGAINST FURTHER CLAIMS

To avoid any future damages claims from the purchaser, it is standard practice for the sale agreement to include a Voetstoots Clause whereby the Seller warrants that he has disclosed all known defects in the property to the Purchaser,  and that He/She has sold the property to the Purchaser in the condition that it is in. The Voetstoots Clause therefore protects the Seller against claims for defects in the property including all latent defects which are unknown at time of sale.

CAN A PURCHASER CLAIM FOR LATENT DEFECTS IN A SALE

A purchaser can only rightfully claim against a Seller for latent defects in a property if the Purchaser is able to prove beyond a reasonable doubt that the Seller was aware of the defects at the time of sale and deliberately concealed these defects from the purchaser to conclude the sale. 

The onus is therefore on the Purchaser to prove that there was a fraudulent non-disclosure by the Seller. Proving that the Seller must have been aware of the defect is a notoriously difficult task and requires expert evidence with reference to objective factors.

CONCLUSION

Sellers should therefore diligently complete the (defect) Disclosure Form to ensure that the Purchaser is aware of the full condition of the property being purchased. This will avoid any potential future claims from the Purchaser regarding a fraudulent non-disclosure of latent defects. Further to that, it is important for Purchasers to protect themselves by conducting their own due diligence on the property they intend to buy, and to get reputable specialists to inspect the property and provide them with assurances should they have any concerns.

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Should you have any questions on this matter, please feel free to contact Danny or any of the other Property Law Specialists in our FHA officeCLICK HERE

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  • On July 28, 2023
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