Property Defects: Important Things to Know

You've bought your first property, you're all settled in…home, sweet home, right? Only now you've discovered that there are some property defects that were missed. What now?

The most important advice for any property buyer is to insist on a proper inspection of the property after the offer to purchase has been accepted by the seller.  This is the only way to ensure that nothing will be missed!

By insisting on an inspection, the buyer will avoid nasty surprises before they pay any monies and will be in a position to negotiate any reparations in the conditions of sale with the seller.

It is very important to note that it is much more difficult to make the seller do anything after the contract has been signed and you as a buyer would probably need to take legal recourse if you feel that the seller did not disclose any latent defects to the agent.

Generally the buyer would pay for the services of an experienced and reputable home inspector who has been trained in discovering the patent AND latent defects of a home.

Patent defects refer to flaws that are visible with the naked eye (like a broken window, wall cracks etc.), but latent defects are hidden from view and not immediately visible.

Latent defects include things like leaking roofs, faulty geysers and any structural issues with the home and while it is compulsory for a seller to disclose latent defects to an agent, it is entirely possible that they might be unaware of it which makes the role of the home inspector all the more important.  

Buyers should also be aware that the Consumer Protection Act (CPA) does not protect a buyer in the case of an ordinary property sale.

Chrissie Johnson from Seeff Balito, says in their newsletter that while the CPA was introduced to protect consumers engaged in commercial transactions with businesses to avoid the consumer being treated unfairly, this only applies when a property Buyer is purchasing a home from a developer or a speculator whose ordinary course of business is to sell properties.

“The CPA does not come into play, and the Buyer will not fall under its protection, with an ordinary property sale as this is seen as a transaction between two consumers - the Seller and the Buyer”.

Johnson also notes the importance of the voetstoots clause.

The word “voetstoots” is the action of buying something ‘as is’, that is ‘just as it stands’ in whatever condition it is, warts and all.

While the voetstoots clause liberates a Seller from any liability for patent defects, this exemption is however not so in the case of latent defects.

Voetstoots is not designed to shield Sellers who engage in fraud or bad faith dealing by making false or misleading representations about the quality or condition of a particular property. Instead it summarises the absolute need for a Purchaser to examine, judge, and inspect a property when considering a purchase”.

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