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'Defects normally not the seller's problem'

15 Nov 2017

When buying a home the buyer will find that in South African law there are two categories of defects - latent and patent.

A patent defect is one that is easily discovered by any person doing a reasonably thorough inspection of the property. A latent defect is one which is not easily detected by such an inspection and may, in fact, be impossible for most buyers and even a professional inspector to recognise.

It is, says Rowan Alexander, Director of Alexander Swart Property, important to understand the difference between the two types of defects because if they crop up later they could have serious legal implications and comebacks.

"Where the property is sold by private treaty, i.e. with the standard Deed of Sale drawn up between a private seller and a private buyer, the purchaser is typically bound by the voetstoots (as it stands) clause and will have NO claim if either type of defect is found in the home after the deal is concluded.

"However if it can be proven that the seller must have been aware of a latent defect but withheld information on this because it was likely to affect the buyer's decision, the buyer can later sue the seller for fraud and claim for repairs and the inconvenience caused."

Legal processes of this kind, adds Alexander, are unpleasant and time consuming and if possible should be avoided. The important message, given out regularly by Alexander Swart Property agents, is therefore: be sceptical about the seller's statements and inspect the property as thoroughly as possible in search for latent defects such as rising damp, rotted floorboards, leaking roofs or structural damage.

In the UK, says Alexander, it is the common practice to appoint a building inspector on every sale. He is known as a Surveyor. However, in South Africa this is generally done only on higher priced properties and even then not on all of them. This, however, is the only way to get a 100% accurate report and the use of such inspectors is likely to catch on more and more in South Africa. These inspectors, he says, have the equipment and expertise to detect latent defects such as rusted concrete reinforcing, wood rot or damp not visible at the time of the inspection.

Some people, says Alexander, believe that the electrical, plumbing, wood borer and electric fence certification now demanded by most South African municipal councils before a sale can take place give adequate assurance that the home has no defects. This is not so: there may be defects not covered by these certification processes and in many cases the seller himself is not aware of these faults and cannot later be held liable for them.

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