Property Defects Full Disclosure Required By Consumer Protection Act

Property defects must be fully disclosed
Property defects must be fully disclosed

Under the new Consumer Protection Act full disclosure of property defects or potential defects has become essential.

From 1 April 2011, developers, speculators, and investors with property portfolios who sell property in their ordinary course of business can no longer rely on the Voetstoots clause to limit their liability for defects. In fact the new act makes it illegal not to specify these in writing. Failure to do so can have dire consequences and could even lead to the cancellation of the sale and a full refund of the purchase price.

Previously the voetstoots clause (voetstoots is a term derived from Roman Dutch Law and means literally “as is”) protected the seller who was able to rely on the fact that it was the buyers responsibility to examine the property for any defects on the principal of caveat emptor or “buyer beware.” Previously an aggrieved buyer had to prove that a seller deliberately withheld information on a defect or was ignorant of a defect that any conscientious seller should have known about.

Under the CPA, no matter how little the seller knows, or could have known, the seller can be held liable for a defect which is discovered by the buyer after transfer takes place.

This has led to a growth industry in the form of Home Inspectors who, for a fee, will check the entire property from top to bottom and produce a detailed report which can be shown to the buyer. This is intended to remove the uncertainty from the sale and to help prevent “nasty surprises” from cropping up once the property has changed hands.

In practice very few people have the required expertise in such a wide spread of disciplines — plumbing, electrical, structural, waterproofing, finishing, etc. Furthermore, the average inspector is unlikely to do better in the way of identifying defects than the average owner doing a comprehensive inspection on his own.

The boundaries of a property are of critical importance and it is essential to establish that the boundary walls are correctly positioned and that they do not encroach on adjoining properties. Agents acting on behalf of sellers should make sure that they have access to site diagrams that indicate exactly the extent of the property. Sellers and their agents should also be aware of any proposed zoning changes in the area.

It is incumbent on the agent to show any defects to the buyer that the seller has revealed. In addition the agent needs to be proactive about physically examining the property and needs to ask probing questions of the seller regarding crime in the area, municipal services problems, noisy neighbours or noisy dogs. Failure to do so will provide buyers with grounds for legal recourse, compensation and even grounds for cancellation where appropriate.

If there is anything you would like to add, please feel free to do so in the comments.

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123 thoughts on “Property Defects Full Disclosure Required By Consumer Protection Act”

  1. HI!

    I would like to have some advise here on process to follow in order to complete the purchase of the house. I am trying to buy a repo house, but the problem that I am facing is the fact that the owners are still in the house even though it is said that they are illegal tenants. We were not allowed to view or inspect the house on the inside, only the outside view was allowed.

    So my fear is as followes: let’s say I do pay the deposit, what guarantees have I got in that those people will get out of the house? What role do agents/lawyers take after the fees have been paid in full to make sure that I move in without hastle?

    I tried to ask this questions but I did not get a proper answer, except that I must start the process in order for me to find out about my concerns.

    1. Hi Khaya

      Sometimes a repossessed property comes with illegal tenants. As mentioned in Top 10 Tips for Buying A Bank Repossessed Property under point #6, this automatically becomes the buyer’s problem and the costs of an eviction and relocation may become the purchaser’s liability after transfer of ownership.

      Consequently, you may find that neither the agent nor the transferring attorney will offer you any assistance whatsoever in this regard. It will be your problem.

      It may serve you well to exercise caution. Best consult with an attorney (not the transferring attorney, who is looking after the interests of the seller) in order to establish what it might cost you to have the tenants legally evicted. You could then take what may be a rather substantial expense into account by adjusting your offer accordingly.

      Good luck.

  2. I purchased a sectional title from the developer in June 2013. The property was already a year old at the time. By June 2015 the tiles in the lounge have cracked and 3 other owners are experiencing the same problem. Poor workmanship and cheap labor I guess.

    What rights do I have as the owner and can I get the developer to pay as the property is almost new?

    1. Hi Regina,

      With the purchase a sectional title unit, as the owner you automatically become a member of the Body Corporate. Perhaps you could get together with other members and ask your BC chairman (or chairwoman) to convene a special meeting to discover the extent of the problems you’ve described and discuss solutions.

      If the developer is at fault, you can address the issue in a united way, from a position of strength, and hopefully gain the developer’s cooperation. The objective should be to resolve matters amicably.

      Best of luck.

  3. We purchased a house and on the offer to purchase was a few things the owner needed to fix before we moved in. We moved in as all was transferred to our name and the bank advised that we should move in as any problems occurring while the house was in our name, we would be liable.

    Since then the roof, ceilings, gates, doors, window on the offer to purchase have not been completed. I have all email correspondence from them as well as the lawyers promising this would be done but have not heard from them since and I am being brushed off whenever trying to contact them.

    Please advise on what can be done regarding this as they keep promising to come and finish but never do.

    1. Hi Tracey,

      It sounds like you moved in before the previous owner could complete the “few things” you mentioned. It’s possible that you may have tacitly agreed to accept “as is” with the passing of risk on occupation.

      You may need to get a costing or estimate and then see if you can reach an amicable agreement with the seller directly.

      If you get nowhere, it may be time to see an attorney. Or you might decide to write it off to school fees and move on.

      Good luck.

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