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What is the difference between Patent and Latent defects?
Patent Defects:
A Patent defect is clearly visible on inpection of the property, such as a broken window, broken door, cracks in the wall, etc. All patent defects should be listed in the Seller’s Declaration as to whom is responsible for fixing what and this declaration must be signed by both parties. Since these patent defects are visible or obvious and no professional inspection is required, the purchaser has no recourse against the seller for these type of defects. The onus on purchasing the property falls on the purchaser to ensure that they have made note of all patent defects and then decide on the strength of this as to whether or not they still want to purchase the property.
Latent Defects:
A Latent defect is not easliy picked up by a superficial inspection, such as a leaking roof, faulty geyser, etc. The common law says that the seller is responsible for all latent defects in the property for three years rom the dare of discovery of the defect. Most sellers are aware of the problems caused by latent defects in a property transaction and that is why they include the voetstoots clause in the sale agreement. The voetstoots clause protects the seller against all defects in the property including all latent defects which are unkown to the seller. If the seller was aware of a latent defect and deliberately concealed this from the purchaser, the purchaser will then have a right of recourse against the seller. The difficulty for the purchaser is the onus will be on the purchaser to prove that the seller was aware of the defect and deliberately hid the fact from the purchaser.
Simple Solution:
A simple solution for the purchaser when purchasing a property is to employ an expert to do an assessment of the property to ensure that there are no underlying defects in the property. Also to ensure that the plans for the property are up to date and in order so that what appears on the property are also appearing on the plans. To ensure that this simple solution is carried out make sure that it is a condition set out in the sale agreement.
For more information please click here.
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