By Tamaryn Campbell (Attorney l Conveyancer l Notary)
Sellers often struggle to comprehend what defects should be disclosed and what should not be disclosed for the sale of their property.
In accordance with the Property Practitioners Act 2019, a mandatory disclosure form came into force on 1 February 2022. This means that every estate agent must obtain a property disclosure form from the seller/lessor before accepting a mandate to sell or lease a property.
Types of defects
In terms of the common law, two types of defects are recognized. The first defect is a latent defect that is not visible or obvious to the naked eye upon reasonable inspection. The second defect is a patent defect which is clearly visual.
Every sale agreement will contain a “Voetstoots” clause. This clause will state that the purchaser buys the property from the seller as it stands, regardless of latent and patent defects. The Seller is then indemnified against a claim for damages in respect of any defects to the property. A buyer can sidestep the voetstoots clause if he can prove that the seller at the time of the conclusion of the contract was aware of the existence of the latent defect in the property sold and deliberately concealed the existence of the defect to the purchaser or refrained from informing the purchaser of its existence.
When is the disclosure form completed?
Any defects to the property may affect the price of the property. It is therefore important that all know latent and patent defects are disclosed by the seller to the estate agent upon inspection of the property. Ideally this will be done in the first meeting between the seller and the estate agent when the property valuation is done.
Is there any legal recourse if the seller was indeed aware of a defect and failed to disclose same?
Any allegation made by the purchaser must be proved. If he can prove that the seller was indeed aware of the defect and purposefully failed to disclose it, the purchaser is entitled to recourse from the seller. The remedy available to the purchaser could be financial compensation, repair of the defect by the seller or cancellation of the sale.
In conclusion, the purchaser is responsible to ensure that he familiarizes himself with the property and all the patent defects before an offer is presented to the seller. The mandatory disclosure form should not be regarded as a substitute for due diligence by the purchaser.
