Latent and patent defects

Latent and patent defects

When Voetstoots is included in a property contract, it means that the purchaser agrees to buy the property in whatever condition it is at the time of the sale, and that the buyer cannot make a claim against the seller for any defects that may be revealed at a later date.

Defects come in two forms: patent and latent:

• Patent defects are visible when undertaking an inspection of a property and might be as simple as a crack in the wall, broken windows, broken roof or internal tiles, or broken gutters. A buyer may refuse to sign an offer to purchase unless the seller fixes those, which a seller commonly agrees to do.
• Latent defects are not visible or obviously apparent, such as structural or termite damage, rising damp, faulty geyser, or swimming pool pump, leaking roofs, or rusted plumbing pipes. They may also have been intentionally hidden, either by design or unintentionally.

Where things become somewhat murky is that in terms of a property contract, the seller is not required to disclose patent nor latent defects to the buyer. BUT, if the seller is aware of patent or latent defects and they do not disclose those to the buyer before finalising the sale, the buyer may institute legal action against the seller, but only if it can be proven that the seller was aware of the defects or deliberately concealed those.

What would prove as evidence of a deliberate concealment, would be the seller having covered up defects with the use of paint, or overlaying a perishing wooden floor with cement.

If buyers become aware of defects during the sale process, they are entitled to cancel the sale agreement, or in some cases may claim for damages. It may be that on a later visit to the property, the buyer notices concealed water damage behind a large cabinet, in which case the buyer may request the seller to disclose the defect, repair it, or potentially renegotiate the sale price.

If after the sale, and again the emphasis is on proving the seller hid defects or was aware of those and did not disclose, the buyer can make a legal claim against the seller within three years.

Inspections

The Voetstoots clause cannot be relied upon by sellers or buyers, given its limitations. It also does not protect sellers from their obligation to comply with other legal parameters such as building regulations and approved plans.

A simple way to avoid any legal battles over whether a property has latent or patent defects, is to ensure an independent inspection is undertaken prior to the sale, and this inspection report should be annexed to the sales agreement. Where the seller has not undertaken an inspection, the buyer may request one, or even pay for it. Such an inspection can be a condition of sale.

The ideal inspection accounts for obstructions that may be hiding defects, which is why it is highly recommended that a professional inspector is hired. They will recognise that an obstacle may be concealing a defect and will endeavour to investigate. It must be made clear that even an inspection, no matter how thorough, may not reveal a latent defect, which, in some cases, may only be revealed through occupation of the property. Always ensure that the professional inspector has been certified by the National Home Builders Registration Council (NHBRC).

Extract from Private Property.