Article by: Somerset West Attorney: Nanika Prinsloo
When is a Seller liable for defects that are not listed in a Sale Agreement with a Seller?
Let’s examine first what are the types of defects that a property can have.
When there is any type of defect in the property that cannot be seen with the naked eye, it is latent.
Selling a property with a latent defect
Despite the fact that Sale Agreement usually contains a voetstoots clause in terms of which the property is sold with any defects it may contain, the Seller must still reveal any latent defects. If the latent defects are not listed, the Seller may be ordered to repair such latent defects at his/her own cost, or the Seller may be ordered to refund the Purchaser a portion of the purchase price if the purchase price was already paid. It would therefore serve a Seller to obtain a professional inspection of the property by experts who can check the property for latent defects so that the Seller does not sell a property and is not aware of any latent defects that may come back to haunt him.
If the defect is obvious and noticeable, it is patent. It is obvious that these defects must be fixed and the Seller cannot hide behind having no knowledge of these defects. The Seller is liable to fix these defects at his/her own cost.
The voetstoots clause is therefore not absolute and will only protect the Seller if the defects are listed. If the Purchaser purchases the property whilst being aware of the defects, (listed in the Sale Agreement), he/she cannot complain after the sale was concluded.