Latent vs patent defects

Making an informed decision regarding the potential investment opportunity when purchasing a property relies significantly on having a clear idea of both latent and patent defects relating to the property.

Property Latent vs Patent Defects | Property Blog Articles

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.

Follow Snymans on Facebook for more legal advice, information and news about property.

15189

Recommended for you

Property Transfers | Bond Registrations | Snymans Attorneys
Contractual Matters

Buying a property off-plan

1276

Buying off-plan can seem daunting for purchasers as you are buying a property that is yet to be completed. On the upside, this has become a profitable approach to the property market and indeed, the proverbial early bird does then catch the worm. There are of course many factors to consider before such a decision is made.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Beware of scams

1328

Fraudulent scams affect all industries and can be hugely detrimental and costly. The best way in which consumers can protect themselves from falling victim to such a scam is being able to identify the warning signs.

Read More
Property Transfers | Bond Registrations | Snymans Attorneys
Contractual Matters

The right of first refusal

7642

A right of first refusal is a mechanism in a contract that affords the holder of such right the preference to buy a particular property, should the owner ever choose to sell it.

Read More
Property Transfers | Bond Registrations | Snymans Attorneys
Contractual Matters

Different forms of ownership

7547

There are a number of forms of ownership of immovable property in South Africa, and sometimes prospective buyers as well as homeowners are not aware of the intricacies of each. To take the mystery out of this for you, we have put together the basics on each of the 3 most common types of ownership: full title ownership, sectional title ownership and long-term lease.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Auctions in the property industry

9741

To help buyers looking to purchase property on auction, here is some crucial information relating to auctioned property.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Latent vs patent defects

Making an informed decision regarding the potential investment opportunity when purchasing a property relies significantly on having a clear idea of both latent and patent defects relating to the property.

Property Latent vs Patent Defects | Property Blog Articles

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.

Follow Snymans on Facebook for more legal advice, information and news about property.

15189