Lies And Defects: Seek Out Those Hidden Property Flaws

Private Property South Africa
Lea Jacobs

No matter where you are in the world, failing to disclose defects in a property can have serious consequences for the buyer and the seller.Under the South African law, the Voetstoets clause has been featured in legal contracts for years. Directly translated, this term means ‘as is’ and this has led to a large number of court cases being instituted by disgruntled buyers, who feel that the seller has misled them in some way. Sellers are often under the impression that the clause protects them as the house is sold defects and all, whether disclosed or not. The truth is, however, a little different and many sellers have found to their detriment that they cannot hide behind this well-known Dutch phrase.The South African Law Reports are littered with lawsuits concerning this area of law. Although the Consumer Protection Act will have some impact on this clause, overall, the onus will still be on the buyer to find out as much as he can about the property before buying it. Obviously, proving that a seller knew about a latent defect can be difficult to demonstrate in a court of law. The expense of getting these types of cases heard by a judge also plays a role and buyers would be better placed if they conducted thorough inspections before signing on the dotted line.By definition, patent defects are easily noticed: latent defects are more difficult to spot and are often the most expensive to repair. Although the concept of house inspectors has taken off in countries such as the US, the idea of using a professional to check out a property in SA is relatively new. Part of the confusion stems from the fact that banks conduct their own inspections before granting bonds. While bank inspectors look at the general condition of the property, their primary role is to ascertain that the banks investment will be covered in monetary terms should the owner default on the bond repayments. They do not bother to check whether the geyser is working or that the roof tiles are not cracked.An independent person can help the buyer avoid the unpleasantness of things going wrong. Having a person who is not emotionally involved act for the buyer can save thousands of Rand.Home inspection companies have taken the art of property inspections to new heights, using the latest technology to expose hidden defects. Some companies go as far as using professionals such as engineers, architects and entomologists to ascertain the extent of a problem.Essentially, no one is going to inspect the property on your behalf unless you specifically employ someone to do the job. In any property transaction it is never safe to assume that everything can be taken at face value and any buyer that has concerns should consult with his agent before signing the sales agreement. Buyers should never feel embarrassed to ask questions related to the property. SA courts are backlogged and it can be years before cases of this nature are finalised should something go wrong.

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