FROM THE LEGAL DESK | Property Condition Report

As many prospective sellers know, the law now requires that a seller - at time of listing - completes and signs a Property Condition Report where a seller is obliged to record all defects in the property about which the seller is aware or ought to be aware.

This report later becomes an annexure to a sale agreement having first being handed to, perused and signed by the purchaser. The report therefore becomes an integral part of the sale agreement.

A seller must therefore give careful consideration to this report and make full disclosure. All too often a purchaser will allege a defect in the property having taken transfer.

One must bear in mind that that the 'voetstoots' doctrine remains alive and well in terms of property transactions. The Property Condition Report required in terms of the Consumer Protection Act has application only to defects above which the seller is aware but fails to disclose.

A seller must also be mindful that the Act also requires disclosure of known facts that are not defects but certainly material to and would influence a sale - an imminent and onerous special levy for instance.

Three things a buyer must prove:

1. The seller (and/or the appointed agent) was, at the time of the sale, aware of the "latent" defects (defects that "would not have been visible or discoverable upon inspection by the ordinary purchaser"), and
2. The seller (and/or the appointed agent) deliberately failed to disclose those defects to the purchaser, and
3. The seller's aim was to induce the buyer to conclude the sale.

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