Latent vs patent defects

Most properties come with defects with varying degrees of severity, and being aware of these defects prior to purchasing a property will determine the level of maintenance or improvement required. However, not all defects are easily visible or identifiable.

The difference between latent and patent defects

The fundamental differences between latent and patent defects are as follows:

• Latent Defects: A latent defect is one that only an expert would be able to identify, while such a defect would not be apparent to a reasonable person upon inspection of a property. Latent defects to a property may include rising damp, faulty pool pumps or geysers, rusted internal pipes and leaking roofs.
  
• Patent Defects: A patent defect on a property is one that should be able to be identified by a reasonable person on inspection of the property. Patent defects would include wall cracks, sagging gutters, broken windows and missing tiles.

Defect disclosure upon sale of a property

When a property is being sold, the seller has a duty to reveal to the purchaser any latent defects to the property at the time of concluding and signing the agreement of sale. This is an important step for the seller in order to avoid being held liable for undisclosed defects at a later stage.

However, the buyer also has a duty to fully inspect the property prior to purchasing it, and will thus not be able to later claim that he or she was not aware of patent defects. This inspection should include moving any large items to ensure that the areas obstructed by these are free of defects, e.g. large cabinets should be shifted as they could potentially hide cracks or damp.

Recourse for defects discovered post registration

Should a defect be identified after the sale of the property is concluded, the onus is on the purchaser to prove that the seller was aware of the defect and that he or she fraudulently concealed this while concluding the transaction.

If it is found that the seller was, in fact, fraudulent, he or she may be required to refund part of the purchase price or rectify the defect in question.

The best protection for both parties is for the seller to compile and sign a complete Defects List. This document is then presented to the purchaser so that there is complete transparency between seller and purchaser regarding the condition of the property.

While this does provide a course of action, in practice this is difficult to deal with since there are no funds held post registration that can be used to ensure the defect is rectified. As a result, the purchaser may need to resort to litigation in order to resolve the matter.

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Written by Wessel de Kock

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