Owners of properties, especially when in possession for many years, could be forgiven for eventually looking past defects that appear in their property over time. The problem with this is that when you sell, certain defects MUST be disclosed, to avoid finding yourself on the wrong side of a court battle.
Every property is sold voetstoots*, which means “as is” with all its defects. Voetstoots literally means “with the shove of a foot”. There is one important exception and that relates to defects that are NOT visible upon inspection by the purchaser AND which the seller was aware of. If those are not disclosed, the purchaser would be able to sue the seller for damages suffered as a result.
It is the estate agent’s duty to assist you in avoiding action that would lead to you being sued. The agent acts on your behalf. He/she is the person who will represent you when showing a property to a prospective purchaser and making statements relating to its state of repair. To avoid any confusion (and to avoid forgetting something) your estate agent should make use of a declaration or statement relating to your property.
The declaration serves as a checklist for you to work through each section of your home to list those items that are defective. The declaration does not do away with the purchaser’s responsibility to inspect the property for patent defects (visible defects) and it also doesn’t change the fact that the seller is still selling the property voetstoots (as it stands). It also serves as proof of what you as seller have disclosed to an estate agent.
Purchasers are often under the misapprehension that the Consumer Protection Act (CPA) will come to their rescue if they do not inspect the property properly and where defects are exposed after taking occupation. In this regard, the CPA only affects agreements concluded in the ordinary course of business by a developer, who supplies goods (property) to the purchaser of the said property.
The Property Practitioners’ Act makes it compulsory for a seller’s declaration to be furnished to a purchaser. We are currently awaiting the effective date for the Act to commence. In the meantime, please complete your declarations comprehensively. This is for your own protection and to prevent problems down the line. It is not worth intentionally concealing defects to try and secure a higher asking price.
