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Buying property: Understanding latent vs patent defects

7 Feb 2018

Understanding the termanology regarding latent and patent defects of a property.

A patent defect is one that is easily discovered by any person doing a reasonably thorough inspection of the property. A latent defect is one which is not easily detected by such an inspection and may, in fact, be impossible for an inspector to recognise.

Where the property is sold by private treaty, i.e. with the standard Deed of Sale drawn up between a private seller and a private buyer, the purchaser is typically bound by the ‘voetstoots’ (as it stands) clause and will have no claim if either type of defect is found in the home after the deal is concluded.
However, if it can be proven that the seller must have been aware of a latent defect but withheld information on this because it was likely to affect the buyer’s decision, the buyer can later sue the seller for fraud and claim for repairs and the inconvenience caused.

Legal processes of this kind are unpleasant and time-consuming and if possible should be avoided. To be sceptical about the seller's statements and inspect the property as thoroughly as possible in search for latent defects such as rising damp, rotten floorboards, leaking roofs or structural damage.
In the UK, it is the common practice to appoint a building inspector on every sale, known as a Surveyor. However, in South Africa this is generally done only on higher priced properties and even then not on all of them.

This, however, is the only way to get a 100% accurate report and the use of such inspectors is likely to catch on more and more in South Africa. These inspectors have the equipment and expertise to detect latent defects such as rusted concrete reinforcing, wood rot or damp not visible at the time of the inspection.
He says some people believe that the electrical, plumbing, wood borer and electric fence certification, now required by most South African municipal councils before a sale can take place, give adequate assurance that the home has no defects. This is not so and there may be defects not covered by these certification processes, and in many cases the seller himself is not aware of these faults and cannot later be held liable for them.