The latent and patent defect saga has been plaguing South African courts for years and even though many believe that the Consumer Protection Act (CPA) will stop unscrupulous sellers trying to pull the wool over unsuspecting buyers’ eyes, this is not actually going to be the case in all instances.
Because of the way that the CPA is worded, the Act only applies to sellers who either make a living out of selling property or continually market themselves as sellers of property. Nonetheless, the CPA does apply to the estate agent which sells the property even if the CPA does not also apply to the seller. Regardless, even where the CPA does not apply, a seller cannot deliberately hide faults in the home and knowingly sell the buyer a property that he knows is defective.
Under South African law there are two distinct types of defects pertaining to property, namely latent and patent defects. The difference between latent and patent defects is fairly obvious. A latent defect, according to Marlon Shevelew the founding partner from Marlon Shevelew and Associates, is a defect that would not readily be revealed by a reasonable inspection. “An example of this would be a crack in the foundation that is hidden or a leak in the roof where the moisture is not yet visible in the interior of the house.”
Patent defects are defects that are not hidden and should be discovered by a reasonable inspection. He says that these types of problems include broken or worn roof tiles, broken windows or large cracks in the foundations that are visible to the naked eye.
In law, the seller is still somewhat protected by the voetstoots clause. Loosely translated this means that the buyer buys the property ‘as is’, although in real terms this does not mean that the seller can deliberately hide defects that he is aware of from the buyer at the time of sale. Sellers have to disclose all faults that they are aware of and this includes those that are not obvious to the buyer when he inspects or views the property.
The voetstoots clause, however, no longer provides any protection to estate agents, as they are prohibited from making false, misleading or deceptive representations by the CPA. Everything regarding the sale of immovable property must be reduced to writing and this definitely applies to latent and patent defects. If a buyer knowingly buys a property with a broken window for example and accepts the situation as is, he will not be able to force the seller to replace the defective pane, even if the CPA applies. However, if a buyer purchases a home on the understanding that the exterior of the property will be painted before transfer takes place and this is written into the contract, then the seller is obligated to fulfil his undertaking to do so.
To many sellers’ surprise, buyers have always had recourse in incidences where they unknowingly bought defective property. Lying, hiding or failing to disclose faults pertaining to a property can have major implications for the seller and if deemed serious enough, can lead to the sale being set aside. Unfortunately given the cost of property in South Africa, the costs associated with pursuing legal action against the seller generally entails High Court action, which by all accounts, is an expensive exercise. “For this reason it is absolutely vital for buyers to conduct a thorough inspection, even if this entails bringing in a professional to do the job,” says Shevelew.
“It would be regarded as foolhardy to take the seller’s and the estate agent’s word for it that all is well in the property and to buy a home that could be hiding a multitude of sins.” He says that anyone, regardless of how much experience they have in the property market, should make sure that they have fully acquainted themselves with all aspects of the home and they are confident that any defects that the seller is aware of have been disclosed.
Buying a home is an emotional decision and although first impressions are important and play a vital role in the eventual outcome, buyers should never enter into a sale agreement until they have all the facts. Being polite and failing to ascertain the true state of the property may not only leave a bitter taste, it could end up costing the buyer a fortune trying to recuperate losses incurred.