You've moved into your new home, and suddenly things start going wrong. A damp patch appears out of nowhere, the lights trip when you turn on a switch, or a small crack starts spreading. It's unsettling, especially when you're unsure what the law allows once you've taken ownership.
The key issue is distinguishing between visible defects (patent defects) and hidden defects (latent defects). South African law treats these differently, affecting liability, timing, and potential remedies.
Visible Defects (Patent Defects): You Should've Seen It
Visible defects (patent defects) are issues that are obvious or could be discovered with a reasonable inspection. Think cracked tiles, broken fittings, or water staining. If you could've noticed it before signing, the law expects you to have raised it. After transfer, complaining about visible defects you accepted won't get you far. Sale agreements often include clauses stating you've inspected the property and are satisfied with its condition, but even without this, the principle applies.
Hidden Defects (Latent Defects): It Was Always There
Hidden defects (latent defects) existed at the time of sale but weren't discoverable through reasonable inspection. Examples include concealed damp, plumbing leaks, or electrical issues that only appear under normal use. The question is whether the defect existed when you took ownership, not when it became visible. Sellers often argue the defect developed later or was caused by your actions, so expert evidence is crucial to prove it was present at the time of sale.
Inspections and Reasonable Discovery
A reasonable inspection means looking carefully and asking questions. Check for warning signs like staining, cracking, musty smells, or patched walls. You're not expected to lift floorboards or open walls, but ignoring obvious issues weakens your position later.
Voetstoots Clause: Not a Free Pass
A voetstoots clause protects sellers from complaints about defects you could've inspected. But it doesn't shield sellers who knowingly hide serious issues. If you can prove the seller was aware of a hidden defect and didn't disclose it, you may have a claim. Evidence of prior repairs, invoices, or communications can be crucial.
Mandatory Disclosure Form: Evidence, Not a Guarantee
Sellers complete this form to disclose known defects. It's evidence of what they knew, but doesn't replace your duty to inspect. The form is prescribed by the Property Practitioners Act and includes a disclaimer stating it's not a guarantee or warranty.
Time Limits: Prescription Doesn't Start Immediately
Prescription starts when you have enough knowledge to pursue a claim, not necessarily on transfer date. Get expert reports quickly to support your case. In Stemmet and Another v Mokhethi and Another, the Supreme Court of Appeal ruled that prescription starts when the buyer has minimum knowledge needed to pursue a claim.
Your Options
If you discover a hidden defect:
- Document it thoroughly with photos, videos, and dates
- Get an expert report if possible
- Notify the seller in writing, clearly and fact fully
Get Expert Help
If you're dealing with significant defects, consult a litigation lawyer early to preserve your position and explore options. They can help assess whether negotiation is realistic or formal steps are needed.
