Estate agents who market properties which have undisclosed defects are exposing themselves to considerable risk – both under common law and in terms of the Consumer Protection Act – says John Graham of HouseCheck.
Graham points out that estate agents have a professional duty to disclose to potential buyers all material information regarding the properties they are marketing. This is because estate agents are suppliers of information, in the “ordinary course of their business” , regarding properties they are marketing. While private sellers may still be able to find some protection under a “voetstoots” clause (because they are not involved in selling property in the “ordinary course of their business”), there is no such respite for agents.
Graham points out that in terms of the CPA buyers are “consumers” of the information supplied to them by estate agents. In this regard, the only protection an agent from a claim under the CPA is to disclose up-front to potential buyers information on all defects and other material information.
The CPA states clearly that: It is irrelevant whether a defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods. “Defect” means any material imperfection that renders the goods less acceptable than persons generally would be reasonably entitled to expect in the circumstances.
The CPA goes further and states that every consumer has a right to receive goods that are reasonably suitable for the purposes, for which they are intended, are of good quality, in good working order and free of any defects. In addition a consumer has the right to receive goods which will be useable and durable for a reasonable period of time and comply with any applicable standards set under any public regulation.
This means that even if the agent does not personally inspect the roof or the roof cavity they should take reasonable steps to ensure that