Examples of Patent Defect include damaged cupboard, wall crack, or an open socket.
Voetstoots Clause
Voestoots clause frees the seller of liability for patent defects found after the buyer’s purchase of the property. Voestoots is the term that is used to describe the purchase of property “as is”. This means that one buys the property under the condition that it is presently. This clause is often used to protect the sellers of mostly second-hand houses, which have in their nature deteriorated in condition by becoming defective. This clause protects sellers from legal actions deriving from damages a buyer finds after the purchase.
Exceptions for cancelling the contract under Voestoots clause
1. The seller did not disclose the defects to the buyer even when they were aware of them
2. The buyer is able to cancel the contact based on innocent and fraudulent material misrepresentation.
What happens until the final certification?
Before the final certification, patent defects that are discovered through inspection may be reported to the contractor who should rectify them within a reasonable period. These defects ought to be rectified before a certification of practical completion is given out. When this certificate is issued while there are patent defects, this could leave the contract administrator liable for the problems that this defects causes, such as liquidation of damages. When practical completion has been certified, the possession of the works is transferred to the client.
Defects liability period
During the defects liability period, the client may be able to report the defects that arise directly to the contractor administrator. It is the duty of the contract administrator to decide whether there are patent defects. If the contract administrator determines the damages to be a defect. A contractor may be required to fix them as soon as reasonably possible.
It is important to note that it is the duty of the contractor to both rectify and identify defects, and not the client. Due to this, when a client brings up defects to the contractor’s notice, they should state that their list does not contain all the defects.
When the defect liability period ends?
The contractor administrator considers items that should be repaired. The contractor discusses those that have not been rectified in order to come up with an appropriate date for rectification. The contractor must rectify these defects within a reasonable period.
If the contractor does not rectify the defects and they have been given ample time, they may be in breach of contracts. In this case, others might be employed to rectify these defects and the cost of these works deducted from the contractor’s retention.
Protecting oneself
1. One should hire a competent home inspector for their potential home. This will make one aware of patent defects before they purchase their home
2. One should take their time to do an investigation of the home and should not be satisfied by the vendor’s realtor word.
3. One should carefully review the disclosure statement and address any concerns that they might have.
4. One should visit their potential home at different times of the day or week.
5. One should ask the vendor about any major concern that they should worry about.
