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Latent defects: This is the recourse homebuyers have

Latent defects are problems with the home that may only become evident months or years later. Here are your options if you discover a latent defect.

Latent Defect

Article summary:

  • When investing in property, especially if it’s your first time, be aware of what problems could surface, and what to do if one does.
  • Latent defects can be a risk and you may not have a claim against your seller, unless your seller hid the defects.
  • You can only make a claim within three years of discovering the defect.
  • Take the precaution of hiring a home inspection service to confirm you are not buying a house with defects.

The excitement of finding your dream house can easily distract you from the nitty gritty of preparing to make such a big investment. The best advice is to temper that with a practical approach.

This includes a property inspection that will hopefully reveal defects in the home.

However, there may be defects that are not obvious at first glance, and only become evident months or even years after purchasing the home.

These are called latent defects. Here’s the recourse granted by the law to owners for whom such defects have become evident.

What you need to know: The previous owner has no obligation to fix defects

Unfortunately, there is not that much in the way of protection for the buyer. The seller is usually protected by the “voetstoots clause”.

What is the “voetstoots clause”?

It means that when you buy a property, you are agreeing to accept it “as is”.

It’s standard in the industry, and most sellers won’t agree to remove it from the offer to purchase.

At least with patent defects (the term for defects that are evident up front), you can refuse to purchase the property unless the owner fixes the defects, which they usually agree to do.

But with latent defects, you can only make a claim against the previous owner if you can prove they hid the defects from you.

Of course, this is difficult to do, and may include an expensive court process that makes it more cost-effective to just fix the defects yourself.

Some examples of latent defects:

  • Leaks.
  • Faulty geysers.
  • Structural issues.
  • Rusting pipes.
  • Pest infestation.
  • Hidden water damage.

What About the Consumer Protection Act?

The Consumer Protection Act, passed in 2008, promotes a fair, accessible and sustainable marketplace for consumer products and services, including the buying or selling of immovable property.

The act stipulates that a company selling a property to a consumer may not include a voetstoots clause. They will thus be held liable for defects in the property.

However, the CPA does not cover private sales.

This is why it’s important to do your due diligence beforehand and ensure a thorough home inspection process.

Applying for a home loan?

We can make the homebuying process easier by submitting your home loan application to multiple banks, so you can compare deals and obtain one with low interest rates.

We also offer a range of tools that can make the home buying process easier.  Start with our Bond Calculator, then use our Bond Indicator to determine what you can afford. Finally, when you’re ready, you can apply for a home loan.

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