On the road to property ownership: Latent defects, snags, and your rights.

Whether you are buying an old home, or a unit in a new residential developments, you are responsible for doing your due diligence before signing any documentation. Some of these responsibilities include checking the building for defects, of which there are 2 types which we discuss further here.

What is a snag?

A snag, which is also known as a patent defect, is a defect that is visible to the naked eye. A patent defect should be easily detectable upon inspection of a property and can be something like a crack in the internal plasterwork. One of the key things is that the buyer has the right to inspect a property for these defects, and the seller is liable to provide remedy and/or repair.

What is a latent defect?

Latent defect differs from a patent defect in that it may not be immediately detectable. In some cases, a latent defect may only become apparent months down the line and once the property has been transferred to the new owner. A latent defect may be a leak in the ceiling which may not be easily detectable upon initial inspection but is visible even 6 months after purchase. If there is an unseen defect which the seller is aware of then they will have to declare this to the buyer unless there is a Voetstoots Clause in the sale agreement.

What is the Voetstoots Clause?

This clause will form part of the sale agreement and is legally binding. By agreeing to the terms within the sale agreement, the buyer understands that they are purchasing the property as it stands. This means that the seller is indemnified against any patent or latent defects in perpetuity. What rights do you have as a buyer? After transfer and as the new owner of the property, it is your responsibility to compile a list of snags and defects. The list of snags and defects are deemed to be patent, i.e. immediately visible, or easily detectable. This list of snags must be handed over to the builder or seller within 60 to 90 days of handover of the property to the buyer. On receipt of the snags list, the builder or seller has a legal obligation to attend to these snags, conduct any repairs thereof and 'make good'. As the owner, you also have to make and keep record of any and all latent defects and submit to the builder or seller. The regulatory body which governs this is the National Home Builders Registration Council (NHBRC).

Common law states that the seller is responsible for all latent defects within the property for three years from the recorded date of discovery of the defect. The responsibility to report all defects falls squarely on the new owner, and failure to do so will not stand up in a legal context if reported after the 3-year timeframe.