When Good Plans Go Bad
Uncovering Latent Defects In Building Designs
Certain property defects are not immediately visible and often only come to light after the fact, when corrective action becomes more complex or costly. Latent defects can significantly impact a property’s value, safety, and functionality, often remaining undetected for years. These defects may result from poor workmanship, substandard materials or design flaws and often emerge long after construction or occupation. For buyers and property owners, uncovering these hidden defects can lead to costly repairs, delays, and even legal disputes. Understanding your rights and the remedies available is essential to protect yourself and your investment from unexpected surprises down the line.
What is a latent defect?
In Le Roux v Zietsman and Another a defect is described as ‘abnormal qualities or attributes that destroy or substantially impair the utility or effectiveness of the property for the purpose for which it had been sold and is commonly used’.[1] Latent defects are those which are not apparent, visible, obvious or easily discoverable upon reasonable inspection of the property. These types of defects may include internal wall cracks, roof leaks, rusted pipes, structural or termite damage, rising damp, and faulty geysers or swimming pool pumps.
Latent defects can be caused by a combination of factors. For example, inadequate or flawed designs can introduce defects that are not visible during construction or inspections. Additionally, the use of low-quality materials or failure to follow best practices during construction can also cause such defects. Environmental factors, such as moisture, temperature changes and soil movement, can gradually compromise the structural integrity of a property over time, thus causing these defects to develop unnoticed.
What are your rights as a buyer?
If a latent defect is discovered after the sale of a property, the buyer may have grounds to take legal action against the seller and seek damages for non-disclosure. However, the seller may be protected by a ‘voetstoots’ clause, which limits their liability. As established in case law such as Truman v Leonard, to successfully claim damages, the buyer must prove that the seller was aware of the defect and intentionally concealed it.[2] Proving deliberate concealment can be challenging, therefor buyers should exercise caution and obtain a professional inspection before finalising a property purchase.
What is a ‘voetstoots’ clause?
The voetstoots clause allows a property to be sold ‘as is’ or ‘just as it stands’, thereby limiting the seller’s liability for latent defects. However, this protection only applies if the seller did not deliberately conceal such defects. Case law such as Banda v Van der Spuy and Van Der Merwe v Meades reinforces that a seller who intentionally and fraudulently conceals the existence of a latent defect, either by failing to disclose it or misrepresenting its condition, forfeits the protection of the voetstoots clause and may be held legally liable for their misconduct.[3]
Furthermore, Section 67 of the Property Practitioners Act aims to minimise legal disputes arising from non-disclosure of property conditions by the seller. Under this section, sellers are required to complete and sign a disclosure form, detailing both patent and latent defects. This form must also be signed by the buyer and attached to the sale agreement. Property practitioners are prohibited from accepting a mandate unless the disclosure form is fully completed and must ensure that it is provided to prospective buyers. If the form is missing or incomplete, the agreement will be deemed to have no disclosed defects. Non-compliance with this requirement can lead to liability for the property practitioner, with the regulatory authority potentially taking further action. Buyers, however, retain the right to conduct their own property inspections to verify the condition before finalising the transaction. Buyers must also ensure that the professional inspector has been certified by the National Home Builders Registration Council (NHBRC).
Overall, the voetstoots clause offers sellers some protection against liability for latent defects. However, buyers should take proactive measures to protect themselves, such as conducting a thorough inspection and obtaining a professional inspection report. It is also important for buyers to be well-informed about their rights regarding latent defects and the protections provided to them under the Consumer Protection Act.
In conclusion
When it comes to latent defects, it is important to know your rights as a buyer to protect your investment. If you encounter latent defects, it is advisable that you seek legal advice regarding the next steps. At Hammond Pole Attorneys, our experienced team is here to provide comprehensive guidance, ensuring you receive the necessary support and legal advice to protect your interests and make well-informed decisions.
Blog by: Michelle Seaton-Smith
[1] Le Roux v Zietsman and Another (HCA10/2020) [2021] ZALMPPHC 79 2021 at para 25.
[2] Truman v Leonard 1994 (4) SA 371 (SE).
[3] Banda v Van der Spuy 2013 (4) SA 77 (SCA) at para 24.
Van Der Merwe v Meades 1991 (2) SA 1 (A)