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  • The rule on who will be responsible for the roof leak will determine whether it is attributed to a patent or latent defect.
  • Latent defect:
  • This defect was not visible, and/or the purchaser could not discover it during the due diligence when inspecting the property. This type of defect impairs the use and enjoyment of the property. Typical examples of latent defects are leaking roofs, dampness and/or structural defects in the foundation, to name but a few.
  • Patent defect:
  • This defect was visible when inspecting the property. During the purchase negotiations, the parties could discuss the options of who will attend to the repairs. Often, the Seller either repairs the patent defect or reduces the purchase price for the Purchaser to repair it.
  • Common law:
    • If the Seller gives the purchaser a declaration that the property is sold free from any defects, and after the sale is concluded, the purchaser confirms that there is a defect, the Seller can be held liable for the repairs. For example, if the Seller declared in the agreement of sale that the roof does not leak and after the sale, the Purchaser experiences leaks in the roof, the Seller is held liable. There has been a breach of contract.
    • If the Seller misrepresents to the Purchaser regarding the property’s condition, the Seller can be held liable. For example, if the Seller is aware that the roof leaks and does not declare the same to the Purchaser, the Seller can be held accountable, and the sale can be set aside. Otherwise, the Purchaser may proceed with the sale and claim a reduction in the price for the damages.

  • What happens if the Seller did not know about the latent defect? 
  • The Seller can still be held liable if the latent defect existed when the sale was concluded between the parties.
  • To explain voetstoots clause in the sale agreement
  • The Purchaser is aware that he/she/they are purchasing the property as-is (voetstoots).
  • The voetstoots clause does not protect the Seller and does not exclude the Seller’s liability if the misrepresentation is proven; hence if the Seller was aware of the latent defect and did not disclose same to the Purchaser, the Seller can be held liable.

Is the seller liable?

  • The Consumer Protection Act:
  • Came into effect on the 1st of April 2011, states the Purchaser has to be informed of all details regarding the property he/she/they are purchasing. 
  • Once the Seller expressly states what condition the property is, utilizing a signed declaration, the Purchaser expressly accepts the current state of condition before purchasing the property.
  • The effect of the CPA has been that the voetstoots clause does little to protect the Seller regarding defects. Hence, the Seller is urged to declare all property defects to the Purchaser before concluding a sale agreement.


– Marsha

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