LATENT DEFECT is a fault in the property which the Seller knows about, but could NOT have been discovered by the Buyer by a reasonably thorough inspection before the sale.
Sellers are obliged to disclose LATENT defects that they are aware of, but buyers are expected to discover PATENT defects on their own.
Allow me to do it for you!
Once a buyer is aware of a problem, and it is evident that the fault existed at the time of purchase, he may recover damages, including the cost of repairs from the seller under Common Law.
You will sign your rights away when you sign the “disclaimer” document from the Estate Agent about the defects in the property.
According to the common law of South Africa, a seller is liable to a purchaser for all latent defects in the property for a period of 3 years after the discovery of the defects. Latent defects refer to defects which are not apparent to the eye and can only be determined with investigation.
Patent defects are clear, apparent and readily seen.
The “voetstoots” clause has been included in agreements of property sales and offers the seller protection from the discovery of latent defects later by the buyer
Clause 55-6 of the CPA makes provision that if a consumer has been expressly informed that the product was offered in a specific condition and he had expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods on that condition it becomes irrelevant whether the failure or defect was latent or patent.
Summary and assumption
Must make sure that he has all information about the property, including the area of the stand, the zoning and the potential of rezoning of adjoining properties.
The condition of the improvements and whether they are legal and the local authority have “as built” plans on record.
He is entitled to request all related information from the Seller and the Estate Agent.
It is your responsibility to give the buyer all relative information and disclose all defects to the estate agent and the buyer, do not try to avoid your responsibilities give him a fair deal, next time you will be the buyer, and will expect it from the seller.
Advice: Obtain a full home inspection from GAUTENG HOME INSPECTIONS and ask the buyer to share the cost with you.
VOETSTOOTS (AS IT IS)
If a seller knew about a latent defect, a Voetstoots clause in an agreement of sales does not exclude the seller’s liability.
The purchaser has to prove that the seller was aware of the latent defect.
If the seller is a developer, builder or speculative investor, then the sale will fall under the Consumer Protection Act and the Voetstoots clause will not be applicable.
The Voetstoots clause can still be included in a contract on condition that the seller has clearly disclosed in writing ALL defects in the property to the purchaser, and the purchaser has accepted that.