The difference between patent or latent defects
With the introduction of the Consumer Protection Act, consumers are protected against being treated unfairly when purchasing a home.
27/07/2018
With the exception of buyers that purchase a property directly from a developer or speculator whose ordinary course of business is to sell properties, the Consumer Protection Act (CPA) was launched to protect those consumers engaged in commercial transactions, such as the transaction between the seller and the buyer of a residential property.
"It is so important for buyers to have any property they be interested in purchasing thoroughly inspected before they submit their offer to purchase. There are instances where the buyer is protected if severe defects are found after the transfer has taken place. However, it is difficult to determine whether the seller deliberately concealed the defect or genuinely wasn't aware of it," says Adrian Goslett of RE/MAX.
There are two kinds of defects to be aware of when buying a property:
Patent Defect
A patent defect is one that is clearly visible on inspection of a property, this can include anything from a broken window to cracks in the wall. It is of the utmost importance that all patent defects should be listed in the offer to purchase, along with who is responsible for fixing them. "Because patent defects are visible or obvious without professional inspection, the buyer has no recourse against these types of defects and it is the responsibility of the buyer to spot patent defects and then decide whether they would still like to proceed with purchasing the property," explains Goslett.
Latent Defect
A latent defect, on the other hand, is not easily picked up by a superficial inspection. Examples of latent defects include a leaking roof or faulty geyser - items that you don't normally give a detailed inspection when viewing a property.
Common law dictates that the seller is responsible for all latent defects in the property for a period of three years from the date of discovery of the defect. "Most sellers are aware that they are responsible for latent defects which is why they include the voetstoots clause in the sale agreement. The clause protects the seller against all defects including latent defects that are unknown to him. However, if the seller was aware of a latent defect and deliberately concealed it from the buyer, the buyer has recourse against the seller. It is important to bear in mind that the onus will be on the buyer to prove that the seller was aware of the defect but deliberately hid it," Goslett said.
It will be dependent on the circumstances, but if a latent defect is found, the buyer will be able to cancel the contract or claim a portion of the purchase price. The law prescribes that the buyer will not be allowed to simply obtain a quote for the repair and then deduct it from the purchase price, paying a lesser amount. The buyer can also not refuse to pay occupational rent or a portion therefore unless the defect seriously impairs the use and occupation of the property.
"For buyers to ensure that they are fully protected against any latent defects , they should enlist the services of a professional home inspection company to check the home thoroughly. The price of paying a professional to do the job properly will be far less than the time and hassle caused by dealing with hidden defects," Goslett concludes.