In South Africa, buying a property is one of the biggest decisions a person can make. However, a buyer needs to know their rights before they purchase a property so that they enter into a sale agreement that they understand.

Discovering Latent and Patent Defects

The first thing a buyer needs to understand is what type of defects can impact the sale of a house and under what circumstances will the buyer be liable for these defects. There are two types of defects, patent defects and latent defects.

Patent Defects

A patent defect is a defect that is clearly visible on inspection of the property, generally before the transfer and sale of the property, an agreement will be made where the seller will be responsible for the cost of fixing these defects.

Latent Defects

A latent defect is a defect that is not easily visible on inspection of the property. An example of a latent defect is a leaking roof or a faulty geyser. The problem with this type of defect is proving liability. The buyer may have a claim against the seller in certain instances. Sellers are aware that they may be liable for latent defects therefore, to protect themselves under these circumstances, most sale agreements will contain the voetstoets clause.

What is the voetstoets clause? 

When you buy a property, it is important to be aware of this clause as it refers to any inherent problems in the homes structure, visible or not visible will become the buyer’s problem. In basic terms it means that the buyer purchases the property as is. 

However, the voetstoets clause will not protect a seller from liability if the seller was aware of the latent defect and deliberately concealed it from the buyer and rental agent. The buyer will have recourse against the seller under these circumstances. The buyer will bear the onus of proof and will need to prove that the seller deliberately concealed the latent defect during the sale of the property.

In terms of common law, the buyer will have a claim against the seller for a period of three years from date of discovery of the defect. If a latent defect is discovered, the buyer will have to make a claim against the seller and cannot merely just cancel/repudiate the contract.

The Buyer may not:

1. Obtain a quote for the repairs and then deduct from the purchase price, paying a lesser amount or.
2. Refuse to pay occupational rent or a portion unless the defect seriously impairs the use and occupation of the property.

Remember that even in these circumstances, it should be brought to all party’s attention what your intentions are to avoid further conflict in a housing dispute. The dispute may also be referred to arbitration to avoid further costs of litigation.

The buyer should also be aware that in terms of an estate agent’s responsibility is to inspect the property for obvious patent defects, to enquire from a seller as to what known latent defects exist and to disclose these to the buyer. If this is the case, then the real estate agent will escape liability and the Seller will be liable.

It is important as a first-time home buyer to do your due diligence on the property you are purchasing, whether that means employing the expertise of an external inspector before you purchase the property or complete a thorough inspection yourself, these are ways to protect yourself and your investment.

Bailey Haynes Inc. – Attorneys and Property Conveyancers in Cape Town

In addition to this, it is always best to seek legal advice from our law firm in Cape Town. We are well versed in the issues that come with purchasing a home or business.

Contact our attorneys and property conveyancers for more information.