Patent defects: Homebuyers’ rights in 2022

Article summary

• Patent defects are obvious even without a home inspection. Latent defects may only be revealed by a home inspection.
• The voetstoots clause means the property seller is not liable for any defects, patent or latent.
• The home buyer can only claim for a defect if they can prove the seller concealed it, and only within three years from discovering the defect.

Critical to the home buying process is the home inspection. The buyer should ensure that the offer to purchase includes a clause requiring such an inspection.

This home inspection will reveal defects in the home. What are the homebuyer’s rights when it comes to defects? Well, that depends whether you’re referring to patent or latent defects.

Latent defect vs patent defect

A patent defect is an issue with the home that will be obvious even without an inspection.

A latent defect is an issue that can only be revealed by a professional inspection, and may not even be discovered by the inspectors. They may only become evident months, or even years after the home has been purchased.

Latent and patent defects in South Africa: The homebuyer’s rights

Patent defects

The buyer can and should list the patent defects that they require the home seller to fix in the offer to purchase.

If the seller refuses to fix these defects, then the buyer has to decide whether to go ahead with the purchase. The voetstoots clause (explained below) ensures there’s no legal obligation on the part of the seller to fix any defects.

Patent defect examples include:

• Broken windows.
• Cracks in the wall.
• Broken lightswitches.
• Broken cupboards.
• Rotting woodwork.

Latent defects

This is tricky for the homebuyer. If the latent defects are not revealed by the inspection, and only become evident later, the buyer can only hold the seller responsible if they can prove the seller hid the defect, and only within three years from discovering the defect.

Since this is difficult to prove in a court of law, the buyer usually has to deal with the defect themselves.

Latent defect examples:

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

Latent and patent defects and the voetstoots clause

The voetstoots clause is included in the offer to purchase, and most sellers will not agree to remove it. It proclaims that the buyer is purchasing the property “as is”, meaning they are agreeing to purchase the property along with any defects it contains, whether patent or latent.

This means the buyer cannot make any claims against the seller unless they can prove the seller hid a defect.

The implications of 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 emphasises the need for a thorough home inspection, so the buyer knows what they’re in for when purchasing a property.