Advice and Opinion

Disclosing patent defects on your property before selling

Estate Agency generic

Home staging is never about covering up flaws on your property and then crossing fingers in the hope that no one will find out about them before the sale goes through.

It’s important to disclose to your estate agent all the known defects on your property before you place your property on the market; they, in turn, can then be upfront about these with potential buyers.

The two kinds of defects that are common on a property are called patent and latent defects.  The difference between latent and patent is fairly obvious: a latent defect is a fault that would not be readily revealed by a reasonable inspection. This includes structural damage, rising damp, damaged pipes in walls, leaking roofs in a house, structural weakness of roof timbers, or an incorrectly installed geyser.  A patent defect is obvious to the naked eye and so it is reasonable to assume that agents can point these faults out themselves.

More on defects disclosures

According to Lawrence Homan, a Just Property franchisee for Berea and the South Coast, agents have started insisting on getting a defects disclosure signed by the seller before the property is sold.

“The agent presents this to the purchaser, who then signs and acknowledges having read the statement listing the property’s defects. This is really another step for the purchaser to see that, as agents, we have taken the necessary steps in ensuring transparency on the sale of the property,” says Homan.

Paul Stevens, CEO of Just Property, adds: “There is talk around the Property Practitioners Bill, 2016, that it might require estate agents to recommend a home inspection in the future to all prospective home buyers. They are hoping that by advising buyers to get a home inspection, most of the uncertainty of buying a used home ‘voetstoets’, or as is, will be removed.”

According to Homan, if passed into law, the Bill will make it mandatory for a disclosure form to be filled in. “An agent may not accept a mandate to sell or let a property without a signed defects disclosure form for presenting to a potential buyer/lessee,” says Homan.

What about the CPA?

It’s important to note here that the CPA only protects buyers if they purchase a property from a seller who regularly sells property or markets themselves as a property seller. This applies to estate agents but not once-off sellers.

“Unfortunately, if a purchaser does pick up latent defects during or after the transfer of the property, their recourse will have to be the courts. In terms of the Consumer Protection Act, the purchaser can have a claim against the agent if it can be proved that the agent was, in fact, aware of any latent defects and never disclosed it,” says Homan.

What does this mean for sellers and buyers?

Quite simply, as a seller, be sure to sign a defects disclosure. As a buyer, ask to see this signed disclosure and do your own inspection and, by all means, get a professional in to do a full inspection on the property before putting in any offers.