Tips when selling property

Honesty is the best policy, they say – and it certainly applies when you’re selling property

AREADER wants to know what defects have to be declared when selling a property. No one’s home is perfect and there are bound to be a few cracks or faults. As a seller you’re bound by law to declare certain problems and if you don’t, you’ll be liable for costs down the line.

We explain the difference between latent and patent defects, as well as what the term “voetstoots” entails.

WHO DECLARES WHAT?

When you put your property on the market, you have to disclose all problems or faults you’re aware of to the estate agent. These are classified as latent and patent defects (more on this below).

The agent must inform prospective buyers about any such defects, says Steve van Wyk of Seeff Centurion. If you’re selling the property privately, you have to inform buyers of any defects you’re aware of.

TYPES OF DEFECTS

Patent defects are clearly visible – you can’t really miss them. Latent defects are less obvious and often involve structural faults. They’re generally more serious than patent defects. FIVE EXAMPLES OF PATENT DEFECTS ▶ Broken window panes ▶ Cracks in walls ▶ Broken gutters ▶ Broken built-in cupboards ▶ Burn marks on carpets FIVE EXAMPLES OF LATENT DEFECTS ▶ Leaks in the roof ▶ Faulty geysers ▶ Structural issues such as weak

spots in the roof ▶ Faulty swimming pool pumps ▶ Leaks that become apparent

only when it rains

WHY DO YOU HAVE TO DECLARE IT?

According to common law the seller is liable for latent defects for a period of three years after the date of sale – unless the seller declares it to the buyer and it’s excluded from the contract. Otherwise fixing these defects in the three-year period becomes the seller’s financial responsibility.

This is where the term “voetstoots” comes in – it’s one of the ways to exclude latent defects from the contract.

The word voetstoots means selling something as it is, in whatever condition it may be, warts and all. So if you’re selling something voetstoots, you generally can’t be held accountable for the cost of any latent defects that may become apparent in the three years following the sale. That’s why the term is so often used in sales contracts between private sellers and buyers.

The voetstoots clause is no longer applicable to sales by property developers or other businesses that sell property. These businesses and developers are legally bound by the Consumer Protection Act to fully declare the condition of the property.

The voetstoots clause may be included in sales contracts between private sellers and buyers. The clause protects the seller from liability for any defects, including latent defects that they’re unaware of.

DON’T LIE

The term voetstoots isn’t meant to protect fraudulent sellers, Chrissie Johnson of Seeff Ballito says. Even if the contract contains a voetstoots clause, the seller must still disclose any defects they’re aware of.

If you sell something voetstoots but don’t declare any defects that you’re aware of, you can still be held liable for the cost of repairs of those defects.

If the seller truly didn’t know about the defect there shouldn’t be any problems for the seller, Van Wyk adds. If, for example, the roof of the home you just bought starts leaking and the seller says they didn’t know about it, a builder or home inspector will easily be able to tell you whether it’s an old or a new defect.

If latent defects should emerge that are serious enough to have influenced whether the buyer would’ve bought the property in the first place, the buyer can cancel the contract and take legal action to reclaim any costs incurred – but the buyer will probably have to prove that the seller was aware of the defect and wilfully didn’t disclose it.

For example, if it’s a structural defect the buyer can get an architect or builder to help prove how long the defect has existed and what problems it could cause.

GET HELP BEFOREHAND

Buyers can insist that a home inspector inspects the property beforehand (contact the SA Society of Home Inspectors, see Get Help Here). The buyer is usually liable for the cost of the inspection. Depending on the size of the house this is between R4 000 and R8 000, Van Wyk says.

If the potential buyer finds unacceptable defects they can make it a condition of sale in the offer, stipulating that the seller must fix the defect before transfer will occur. The seller must then solve the problem.