Written for YourProperty

The tricky issue of latent versus patent defects raises its head again this week.

A Property Poser reader recently signed an offer to purchase on a property, which the seller had originally bought on auction and renovated before putting up for sale.

The owner assured the purchasing reader that the house had wooden floors, even though these were covered with carpet when the offer was signed. 

The reader visited the property again while the transfer was in progress to take certain measurements. Upon further inspection, he found that the so-called wooden floors were, in fact, chipboard and not solid wood.

When he broached the issue with the seller, the seller claimed ignorance of the quality of the flooring, as he had never personally lived in the house. Carpets had been replaced, but the seller apparently had not seen what lay beneath the old covering.

The reader is now concerned about his options because his contract contained a so-called voetstoots clause. 

“This simply means that the purchaser buys the property as it stands and that the seller is not liable for any defects that may be discovered at a later stage,” says Charl Crous from Du Toit Strömbeck Attorneys in Port Elizabeth.

Crous says the flooring issue is a good example of a latent defect – as opposed to an obvious or patent defect. Being covered by carpeting, the floors were not clearly visible when conducting an ordinary inspection.  

“The objective test for a latent defect asks what could or should have been seen during the original and reasonable inspection of the property; and is not limited to what the purchaser did see.”

If it is discovered that the seller was in fact aware of the true facts, Crous says he will not be able to find protection in the voetstoots clause and could be held liable for misrepresenting the facts. 

“As this is a factual dispute, litigation may be the only method available to the reader to try to enforce his rights.”

Charlotte Vermaak from Chas Everitt in PE says it is interesting that, in this case, the seller had not lived in the house himself.

“From the sound of the floors underfoot, it could be quite possible that he was not aware of the quality or type of wood used in the flooring.”

Depending on the cumulative effect of the evidence presented by both parties, Vermaak says a decision would be made on the balance of probabilities – in other words, which party’s version seems more likely.

Vermaak says there are a couple of remedies available to the purchaser in this situation.

“He could institute a claim to have the purchase price reduced to an amount he might have paid had he known about the defect.”

Alternatively, if the purchaser is able to show that he would not have bought the property had he known about the defect, and if the transfer has not yet taken place, the transaction could be cancelled.  If it has, then the purchaser may have a claim for damages.

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