Buying

What Are the Differences Between Patent and Latent Defects?

When buying a house, do you consider the home seller to be the expert on his house?

Would it be fair to say that it’s advisable for the home buyer NOT to take his word for it?

Yet, there aren’t too many home buyers who make use of an independent and professional home inspector, whereby they end up saving a lot of time and money!

These property specialists are expertly-trained to investigate whether the property that you are about to buy, is in the best shape it can be. And if it isn’t, to inform you via a detailed report about its potential ‘shortcomings’.

“Ironically enough, many people believe that buying a house is one of the biggest investments that one makes in life, yet very few homeowners make use of the services a property inspector offers.”

Patent & latent defects

South African law reserves the space for two different types of defaults in a house: patent and latent defects:

— A latent defect is a defect that is not revealed immediately upon inspection but requires deeper investigation.

— A patent defect, on the other hand, is a defect that’s spotted immediately and should be identified as soon as possible when an inspector visits the home.

Consumer Protection Act (CPA)

Many South African consumers somehow believe that they are under protection by the Consumer Protection Act (CPA) and also believe that a seller won’t try to fool them upon purchasing a house.

The Act only comes into play if the sellers sell their own property or continually market themselves as sellers of property.

The CPA does come into play against real estate agents, but the buyer would only have a valid claim if they can prove that the agent was in on the trickery as well. In other words, the agent would have had to know about the defects in the house during the marketing/selling of the property.

Caveat emptor – buyer beware

Where exactly does this leave the buyer?

Unfortunately, besides the majority of home buyers not taking it further due to the financial implications, for those who do decide to take it higher, it oftentimes becomes a court issue and buyers are left to the mercy of judges.

Under the Prescription Act, a purchaser has three years to become aware of the defects of a house in order to hold the seller liable. In the case of the CPA, the period changes to 6 months.

The CPA allows the consumer to own goods upon purchase that are of high quality and that will be usable for an agreeable amount of time. If these products do not meet the requirements, they can be sent back within 6 months. In the case of a house, however, the period is much longer.

Voetstoots clause

In the case where the CPA does not count, the ‘voetstoots’ clause is applicable.

This voetstoots clause protects the seller to a degree unless the seller is aware of a fault and does not declare it. Then the seller would have shown fraudulent behavior.

Many sellers seem to believe that this clause protects them completely and absolves them of all responsibility, yet many courts have shown to disagree with this viewpoint. Because the CPA does not apply to most property disputes, most sellers will receive protection via this clause.

Common law

Common law states, however, that if a seller is aware of a defect in the home, they must make the buyer aware of it. The buyer may then claim any damages suffered if the seller was aware of the problem at the time of the purchase.

Legally speaking, it is not required to record such defects, but it does make things a lot easier when the time comes to sell your home. It is always wise to record any and all defects and make a seller aware of it.

In the end, it not only protects the buyer but the seller as well.

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