Imagine buying the house of your dreams, after saving for a decade.  With the first summer rains, the roof leaks so much that no number of buckets in the corridor can resolve the matter.

As the plot thickens, it becomes known that the seller knew about this leaking roof, in fact it was the reason he wanted to sell!

We are often confronted with these types of facts and clients who get so excited when they buy or sell property, that they forget the details.  And as they say, the devil is in the detail.  More so at the sale of a property.  It is important for sellers to remember that you have a legal obligation to disclose defects on your property to the purchaser.

There are mainly two types of defects when we work with immovable property (homes etc.)  They are:  Latent defects, whis is hidden or concealed defects.  This means that it could not be discovered by reasonable and customary observation or inspection

and   

patent defects, which are visible issues that can be observed with casual inspection, such as cracked walls or broken windows and should ideally be addressed in the offer to purchase.

In South Africa this aspect is governed by the common law, the property practitioners act and the Consumer protection act.  Now it can get very tricky to understand when what applies, but the bottom line is that when buying and selling a home, the contracting parties should agree to a purchase price and this is related to the condition of the property at the time of the sale.

This requires disclosing to the seller the good and the bad attributes of the property.

There is a misconception that this voetstoots clause no longer applies.  This is not true, although as with everything in the law, there are exceptions.

Voetstoots means that the purchaser buys property from a seller as it stands at the time of sale.  However, voetstoots does not protect the seller against claims for latent defects where there was fraudulent misrepresentation or fraudulent non-disclosure by or on behalf of the seller/agent.

Fraudulent non-disclosure is exactly this.  The seller is aware of a latent defect that could potentially affect the sale, and deliberately conceals it.  He just wants to get rid of this problem.

All known defects should be disclosed by the seller to the estate agent immediately upon inspection of the property and ordinarily is done during the first meeting between the two parties when a property valuation is undertaken..

Defects may affect the price of the property, so it is crucial that the agent be aware of any potential risks.  The seller then completes and signs the disclosure form and this form is then accepted and signed in full by the purchaser before an offer to purchase is presented to a seller.

If the seller fails to disclose and on inspection it is evident the seller was aware of the defect/s, there are legal recourse.  If it can be proven that the seller was in fact aware of the defect and purposefully failed to disclose it, the purchaser is entitled to claim from the seller.

Each case is based on its own merits and, depending on the defect and scope thereof, a buyer could litigate and the recourse could be financial compensation, remedy of the defect, or in severe cases, request cancellation of the sale.