Defects on the home you just bought?
Congratulations! You have successfully bought your new home – transfer of the property has been successfully registered! Wow! Your property investment portfolio has grown significantly! You have just made a huge investment and have to ensure that the bank is happy with that debit going off every month!
You have just moved in and noticed a crack in the walls / ceiling – water damage?! Or you are ready to renovate but that garage built on the side of the property is not reflected / approved on the building plans.
This could cost you thousands of Rands to repair which you do not have. But are you liable for this? Or should the Seller have told about this? Had he/she disclosed this would you have paid that much money for the property? At the end, it would surely would have made a difference!
Let us explain the law regarding defects in property which you have bought and what your rights are.
Most Offer to Purchase Agreements should include a clause which states VOETSTOOTS. What does this mean?
- Voetstoots: this concept originates from Roman Dutch Law and means to sell or buy a property as it is, the same condition it is in, at the time of sale. This clause generally protects the Seller against defects (patent and some latent) on the property at the time of sale. Defects are categorised into two types.
- A Latent defect is a defect which is not visible to the naked eye when the property was inspected. In other words, the buyer when inspecting the property could not have seen the defect without having been told that the defect existed. Example: a cracked wall causing water damage / leak in roof/ small leak in the pool.
- A patent defect is a defect which is not hidden and is easily identifiable by the buyer. Example: cracked window panes / broken door lock.
- Application of voetstoots read with the Consumer Protection Act CPA: Although the voetstoots clause was created to protect the Seller from any defects, the law states that the Seller is not protected from the non-disclosure of latent defects which he/she knew of. The Voetstoots clause only protects the Seller against all patent defects and all latent defects which the Seller does not know of and did not deliberately conceal.
The onus is on the buyer to prove that the Seller knew about the defects and deliberately concealed it in order to be successful for a claim of damages or to cancel the agreement. This could prove to be very difficult for the buyer to prove. It is therefore the responsibility on the buyer to inspect the property thoroughly and to ensure he had access to the entire property before signing the Offer to Purchase.
Section 67 Property Practitioner Act 22 simplifies things and states that all Offer to Purchase agreements should include a defective list which list all the defects which the Seller knows of.
We work closely with estate agents who adhere to the rules of the Property Practitioners Act and ensure that both the sale of property is dealt with transparency. Contact us to make an appointment when selling or buying to ensure the process is carried out smoothly.