Disclosing defects now a law

Disclosing defects now a law

MAIN IMAGE: Tiaan Pretorius, Manager for Seeff Centurion

The new Property Practitioner’s Act 2019 is an important piece of legislation in the property sector. The new act came into effect on 1 February and several changes to the industry impacting on both agents and clients is in the offing.

With the publication of the regulations in mid-December, the Act and all its provisions is now active in full effect. The Act brings several changes to the industry including updating the title of estate agents from “estate agent” to “property practitioner”.

The Act also provides more protection for consumers including the need to disclose defects in both sales and rentals. Although it has been in practice for some time, it is now a legal requirement. The document must be signed by all parties and annexed to the respective sale or lease agreement.

According to Tiaan Pretorius, manager for Seeff Centurion, sellers should not try to cover or conceal defects because this can land a seller in hot water since they could be sued by the purchaser. However, should a seller fail to disclose a fault that they were unaware of, they would obviously not have been able to declare it, hence it is unlikely to pose a problem for the seller.

There are generally two types of defects, namely patent defects which are those that are visible to the naked eye, and latent defects which usually relate to structural issues and are more difficult to spot. The property practitioner must undertake a thorough inspection and the seller must point out all defects, regardless of whether they are patent or latent.

Patent defects are usually easily identifiable. These would include aspects such as cracks in the walls, sagging gutters, cracked or broken windows, damaged light switches, cracks around the swimming pool, deteriorated woodwork, damaged cupboards, cracking paint work, cracked tiles and damage to carpets, laminate or wooden flooring.

According to Alan Rubin, Chief Operating Officer at ooba, if a dispute arises around latent defects in a home purchase before or after registration of transfer the matter can, by agreement, be referred for arbitration or determination. If that option is not listed in the sale agreement the parties should try to resolve it between themselves, before applying to the courts for resolution.

“Legal costs can quickly outstrip the costs of repairing or replacing the disputed item, so this route should be avoided, if possible,” says Rubin.

“Don’t let the risk of a defect put you off buying your dream home though. Simply be aware and be informed.” Our suggestion is to try to contain your enthusiasm long enough to inspect a property carefully before you make an offer – or take somebody with you who knows what to look for. You need to be sensible and look for latent defects in a home purchase, such as a leaking roof or damp,” he says.

Latent defects include structural issues such as unsteady walls, leaking roofs, faulty geysers, and swimming pool pumps, rising damp and so on. These are more difficult to spot, hence our recommendation that the buyer gets an inspection done, says Pretorius.

It is important to choose a reputable home inspector with the relevant expertise to inspect and discover defects in the property. The cost of the inspection is for the buyer’s account, but this is money well-spent, he says further.

An inspection can ensure that there are no surprises before payments are made. Buyers should be mindful that once the contract is signed it becomes more difficult to act and can be costly if legal action is required. It will also put the buyer in a position to request repairs or negotiate reparations as part of the conditions of sale.

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