Disclosing Latent Defects

The question posed to our panel this week deals with the age-old issue of latent and patent defects.

Upon moving into his newly acquired house, our reader discovered that there were several defects that were possibly hidden by the seller.

The reader says he had asked specific questions regarding dampness upon his initial inspection, all of which were answered in the negative by the seller.

However, after moving in, he discovered dampness behind the fridge and washing machine as well as in the cupboard below the sink, where a leaking pipe was dripping into a container previously hidden by cleaning products.

It also appeared that the skirting boards were affixed with bath sealant, but this interim solution proved unsuccessful.

Schalk van der Merwe from Rawson Properties Helderberg says one can quite easily assume that the agreement of sale would have contained the so-called “voetstoots” clause, meaning that the purchaser buys the property as it stands.

“This ostensibly frees the seller from any liability in terms of patent and latent defects that the purchaser may find when taking occupation of the property.”

Van der Merwe says a patent defect is one that should be identifiable upon any inspection that is carried out in a reasonable manner.

“Examples include wall cracks, broken windows, missing tiles and so on. Such issues are usually dealt with by the parties at the time of the sale, unless merely accepted by the purchaser.”

Van der Merwe says it is important to remember that the test is objective, in other words what could or should have been seen, not only what the purchaser in fact did see.

“Latent defects my not be apparent upon an ordinary inspection. These include faults that are not immediately obvious or are hidden from view, such as dampness behind a piece of furniture.”

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says a seller is liable for defects to the property that are not apparent upon a careful inspection if he or she had knowledge thereof.

“In that case, the voetstoots clause in the agreement will not negate the seller’s liability.”

The fact that the reader asked pertinent questions relating to dampness, which were all answered in the negative, seems like a deliberate attempt to conceal the truth, according to Geldenhuys.

“Furthermore, measures taken by the seller to repair the skirting boards and the placement of a container underneath a water leak make it difficult to assume that the seller wasn’t aware of the defects.”

Geldenhuys says there are remedies available to the buyer, such as instituting a claim for a reduction of the purchase price to reflect one that he would’ve paid had he been aware of the defects.

“If the defects are material and if the parties cannot resolve the matter otherwise, this may lead to the cancellation of the transaction or a claim for damages.”