Under South African law, over and above the obligation to disclose all known defects of a property, the seller is required to inform potential buyers of any abnormal qualities of the property he or she is selling. For example, if part of a wooden floor was replaced with a concrete slab. This is not necessarily a defect, however, it is an unusual feature which a buyer could not be presumed to know about if this area was covered by a rug.
The non-disclosure of any unusual or abnormal qualities of the property would have the effect of placing the seller and buyer on unequal terms as the buyer may make an offer which he or she would not have made if the relevant quality of the property had been known.
The defects disclosure document
An estate agent will typically provide the seller with a defects disclosure document for completion. On this document that is then provided to the prospective buyer, the seller will outline all known defects of the property.
In addition to all defects, the seller is also required to list any unusual or abnormal qualities of the property. This may include the scenario mentioned above, or for example, should the property (or part of the property) have been listed as a national monument. This is an important aspect for a buyer to know as this will affect the future use or renovation allowed.
Buyer’s acceptance of the property condition
Once a full defects disclosure document has been provided, should the potential buyer decide to make an offer to purchase, it would be best practice to have the potential buyer acknowledge the full list of defects and unusual or abnormal qualities by signing the document and attaching this as an annexure to the offer to purchase. This ensures there is no uncertainty as to the understanding by both parties regarding the condition of the property being purchased.
Undisclosed defects or unusual qualities
If a buyer discovers any unusual or abnormal qualities of the property and it is apparent that the seller knew of these and did not disclose them, the buyer will have legal recourse. In such a case, a buyer will be able to litigate the matter which can result in claiming damages or in severe cases, requesting the cancellation of the transfer.
Written by Wessel de Kock