An agreement of sale is signed by the buyer and the seller. The Purchaser receives ownership of the property. After a month, there were significant downpours and roof leaks. Who is responsible for fixing the roof—the Seller or the Purchaser, the property’s new owner? Property sellers need to know this!

Understanding the distinction between latent and patent flaws is necessary to determine who is responsible. A latent flaw is one that is not immediately apparent but may be found during a property inspection. This kind of flaw makes it difficult to use and enjoy the property. Roof leaks, moisture, and/or structural flaws in the foundation are a few common examples of latent flaws.

On the other hand, a patent flaw is apparent when the property is inspected. As a result, the parties can decide among themselves who will handle the repairs. It is negotiable between the parties whether the Seller fixes the patent defect or lowers the purchase price so that the buyer can fix it.

Therefore, if a disagreement should develop between the parties, it will be over the latent defect issue. The following is the common law position:

The seller may be held responsible for the repairs if the buyer receives a written express warranty from the seller that the property is being sold without any defects, and the buyer later certifies that there is a fault. For instance, if the Seller represented in the sales agreement that the roof does not leak and the Purchaser later discovers leaks in the roof, the Seller is responsible for the damages as a result of the breach of the agreement.

The Seller may be held accountable if the Seller gives the Purchaser false information about the state of the property. For instance, if the seller knows the roof leaks but doesn’t tell the buyer, the seller may be held responsible and the sale may be thrown out, or the buyer may go through with the sale while requesting a price reduction for the damages.

What if the Seller was unaware of the latent defect, one may wonder? If the latent fault existed at the time the sale was finalized between the parties, the seller may be held accountable.

But why does the selling agreement include a voetstoots clause that is meant to safeguard the seller by telling the buyer that they are buying the property “voetstoots”? The voetstoots clause does not protect the seller and does not limit the seller’s culpability if the misrepresentation is proven; as a result, the seller may be held accountable if the seller knew about the latent fault but failed to disclose it to the buyer.

According to the Consumer Protection Act, which went into effect on April 1, 2011, the buyer must be made aware of any information pertaining to the property they are purchasing. The implied warranty of the property’s condition disappears after the seller expressly states what condition it is in and the buyer expressly agrees to the current state of the property before buying it.

The CPA has the result that the voetstoots provision offers minimal protection to the seller when it comes to defects; as a result, the seller is recommended to disclose all property flaws to the buyer before to signing a sale agreement.