This week, our panel deals with a question from a reader grappling with the issue of moral defects versus latent and patent ones.
The reader is currently renting a property, which is on the market and has been viewed by several potential buyers.
When questioned by the viewers about possible issues or faults relating to the property, he has responded truthfully. Unfortunately, it appears that there are structural defects, which have caused the walls and tiles to crack.
The reader’s honesty has infuriated the estate agent marketing the property who has since instructed him to not to talk to potential buyers, saying he is “deliberately exposing latent defects”.
The tenant believes he has a moral obligation, however, to tell the truth regardless of its effect.
When selling a property, all latent (hidden) and patent (visible) defects have to be disclosed, says Rian du Toit from DTS Attorneys in Port Elizabeth.
“Even selling the property voetstoots (as is) will not necessarily protect the seller against non-disclosure of defects.”
Du Toit says it is generally accepted that a seller is only excused from liability for latent defects when the contract provides for a voetstoots sale and where he himself was not aware of the problems at the time of the sale.
“If the seller knowingly conceals a latent defect he will, at least, be liable to the purchaser for the cost of its repair. Where the defect is significant, it could even trigger the potential cancellation of the sale.”
Although the new Consumer Protection Act gives purchasers certain rights regarding defects, Du Toit says it does not apply to once-off transactions between individual buyers and sellers.
The potential purchaser must thoroughly inspect the property and ask the questions any reasonable buyer would ask, says Du Toit.
“To this extent, questioning the tenant is reasonable, since he may have discovered certain faults in the course of living there. The tenant does not, however, represent the seller.”
In this instance, it is unreasonable, says Du Toit, for the agent to demand that the tenant not disclose any faults of which he has become aware.
The mere fact that the agent has thus also become aware of the defects places a responsibility on him to discuss the matter with the seller, says Charlotte Vermaak from Chas Everitt in PE.
“The agent must obtain further information, which he is then obligated to disclose to potential purchasers.”
Vermaak says the above does not consider the alternative scenario where the tenant is maliciously making false allegations, for his own benefit, to deter prospective buyers.
“The agent would then be fully entitled to ensure that the tenant does not disclose unfounded information that could harm a potential sale.”
Furthermore, says Vermaak, the tenant should also not express his opinion about what may be wrong with the property or the cause of defects as he is not an expert.
“However, having lived in the property, he may be aware of defects that are possibly hidden by furniture or cupboards, such as dampness or cracks, which he could disclose to the seller and/or agent.”
According to Vermaak, it would then be up to the agent and/or seller to disclose this information or risk the legal consequences that could ensue.
