Patent And Latent Defects And The Offer To Purchase
But before we go into the different types of defects, we need to take a step back and first look at the concept of ‘voetstoots’ as most agreements make provision for a property to be sold ‘voetstoots’. So what does ‘voetstoots’ mean? This concept can be described as selling an object ‘as is’, just as it stands with defects and all. For purposes of buying a house, it means that the Seller will be shielded from any liability for defects on the property. In other words, this clause will free the Seller from his implied warranty against all patent and latent defects.
So what is the difference between patent and latent defects?
Patent Defects
Patent defects to the property are those defects which can be seen with the naked eye after a fair inspection of the property by a layman. It is the obligation of the Purchaser to conduct a thorough inspection of the property to identify any defects on the property before conclusion of the agreement of sale. There is an irrefutable presumption that the Purchaser is satisfied with the conditions of the property with regards to any patent defects on conclusion of the agreement. If the parties do not specify in the agreement that these visible defects must be repaired, then they accept these visible defects ‘as is’ and the Seller will then be protected by the ‘voetstoots’-clause. Examples of patent defects are broken windows, visible cracks in the wall, missing tiles and sagging gutters.
With these defects, a Purchaser cannot later claim, after acquainting himself with the general condition of the property, that he did not see or were not aware of these defects.
The Purchaser will however have the right to insert into the offer to purchase that the broken window must be repaired prior to the property being transferred. These conditions can then be negotiated by the parties as it would have an impact on the amount the Purchaser is willing to offer as a purchase price for the property.
Latent Defects
A latent defect to the property is a defect which cannot be seen with the naked eye after a fair inspection of the property by a layman. These defects can often only be determined by an expert after inspection of the property. The property is offered and sold in the condition as it stands ie ‘voetstoots’, subject to the terms and conditions and servitudes in the current title deed of the property. The Purchaser shall have no claims whatsoever against the Seller for any latent defects, unless the Seller implicitly had prior knowledge of such a defect and refrained from advising the Purchaser of such defect prior to signing the agreement of sale. Examples – where the Seller is aware of a leaking pipe and does not repair the pipe but covers up the damage to the wall and tiles by repairing only the wall and tiles so the damage and damp etc it might have caused, is no longer visible or, when a roof leaks only when it rains and the Seller is aware of it, but does not inform the prospective Purchaser. Another example is where a Seller moves a cabinet in front of a wall, to knowingly conceal dampness on the wall behind the cabinet.
It is therefore important for the Seller, to avoid being held liable for any of these defects, that the Seller has a duty to disclose to the Purchaser any latent defects to the property prior to conclusion of the sale agreement. If the agreement is however concluded and these latent defects only transpire after the fact, the onus will be on the Purchaser to prove that the Seller was aware of the defect/s and that the Seller was fraudulently concealing them.
If the Purchaser can prove that the Seller had prior knowledge about a defect which the Seller did not disclose prior to conclusion of the agreement and that the Seller had concealed the defects fraudulently and the defect is so serious, that if the Purchaser was aware of it, he would not have made an offer on the property, the Purchaser can either cancel the agreement on these grounds, or institute legal action to claim damages and/or for a reduction in the purchase price.
In conclusion, only if it can be proved that the Seller was aware of a latent defect and that he purposefully withheld the information from the Purchaser, the Purchaser will have some sort of recourse against the Seller.
If you have any queries pertaining to the above, or require legal assistance with a similar situation, kindly contact our offices for the appropriate legal advice.
LYNDA CHANTLER
ATTORNEY & CONVEYANCER
B.COMM LL.B (University of Stellenbosch)
ASSOCIATE AT VAN ZYL KRUGER INC
B.COMM LL.B (University of Stellenbosch)
ASSOCIATE AT VAN ZYL KRUGER INC
Provided by Van Zyl Kruger
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