What must a seller disclose about a property?

For generations the answer to "what must a seller tell the buyer" was: as little as they like, because the contract says voetstoots. That was never quite right, and since the Property Practitioners Act 22 of 2019 it is not even approximately right.

There is now a form, it is mandatory, and the penalty for skipping it falls on the two people who usually assume it is somebody else's paperwork.

The disclosure form

Section 67 requires a property practitioner to:

• obtain a disclosure form from the seller or lessor, signed by them, before accepting a mandate, and
• provide that form to a prospective buyer or tenant before any offer is made.

The completed form must then be attached to the agreement of sale or lease, and it forms part of that agreement.

What the form asks the seller to disclose is, broadly, defects and deficiencies in the property of which the seller is aware: those that are reasonably and easily identifiable on inspection, those that may emerge later, and those that have been deliberately concealed.

It is signed by the seller. It is the seller's statement, not the agent's opinion, and a seller who fills it in carelessly is making a written representation they will be held to.

What happens if it is left out

This is the provision that changes behaviour, and it is the one nobody expects.

If no disclosure form is attached to the agreement, the agreement is interpreted as if no defects or deficiencies of the property were disclosed.

Read that carefully. It does not say the agreement is void. It says the law treats the transaction as one in which the seller disclosed nothing at all.

So a seller who told the agent verbally about the damp, and the agent who noted it in an email, are in the same position as a seller who said nothing: on the face of the agreement, nothing was disclosed. Any argument later that the buyer knew, or was told, starts from a written record that says otherwise.

That is a very uncomfortable place for a seller and an even more uncomfortable one for the agent who did not obtain the form.

It does not replace voetstoots

A good deal of commentary overstates this, so it is worth being precise.

Section 67 does not abolish the voetstoots clause and does not change the underlying law on latent defects. A voetstoots clause still operates: the buyer takes the property as it stands, and the seller is not liable for defects they did not know about.

What has always been true, and remains true, is that voetstoots does not protect a seller who knew of a latent defect and deliberately concealed it. That is fraud, and a fraudulent concealment has never been covered by the clause. Our guide on the voetstoots clause sets out where the line falls.

What the disclosure form changes is evidence. Before, a buyer complaining about a concealed defect had to prove that the seller knew. Now there is a signed document in which the seller said what they knew, and the gap between that document and the truth is the case.

A seller who ticked "no" next to a defect they were aware of has done something considerably worse than saying nothing. They have put it in writing.

What sellers should actually do

Complete it yourself, properly, and take time over it. Not the agent, not from memory in the car.

Disclose everything you know, including things you have lived with and stopped noticing: the geyser that was replaced, the wall that cracked and was patched, the roof that leaks in a particular wind, the neighbour's encroaching structure, the pool pump that is on its last legs.

Disclose the legal issues too, not just the physical ones. Building work done without approved plans is the biggest one, and it surfaces at transfer or when the buyer later tries to sell. Illegal or unapproved structures, an unresolved boundary dispute, outstanding municipal issues and unapproved alterations all belong on the form.

Do not describe defects as repaired unless they were. "Fixed" is a claim.

Keep your copy, with the date.

The instinct is that disclosure costs you money. In practice, disclosed defects get negotiated once, at the price stage, and concealed defects get litigated. The second is far more expensive, and it happens after you have spent the proceeds.

What buyers should actually do

Ask for the form before you sign anything. You are entitled to it before an offer is made. If nobody has produced one, that is information about the transaction you are entering.

Read it against what you can see. A form declaring no defects on a forty-year-old house deserves scrutiny.

Check that it is attached to the agreement you sign, and that the version attached is the one you were shown.

Get your own inspection anyway. The form records what the seller says they know. It is not a survey, and an independent home inspection is the cheapest money in a property purchase.

Ask about the specific things forms are silent on: approved building plans for every structure, whether the swimming pool complies, the age of the roof and the geyser, and whether there has been water ingress.

Keep everything. The form, the listing, the emails, the photographs you took on the viewing.

The certificates are a separate question

Disclosure and compliance certificates are different things, and buyers conflate them.

The electrical compliance certificate is required on transfer, and there are further certificates depending on the property: electric fence, gas installation, and in some areas plumbing and beetle certificates. Who pays for each is a matter of agreement and the offer to purchase should say.

A valid certificate is not a disclosure that the installation is in good condition, and a disclosure form is not a substitute for a certificate. You want both.

Our guide on transfer costs covers what else falls due, and the transfer costs calculator gives the figures.

If a defect emerges after transfer

The question then is what the seller knew and what was said.

Was there a disclosure form? If not, the agreement is read as though nothing was disclosed, which helps you.

Did the form deal with this defect? A disclosed defect is one you bought with your eyes open, and voetstoots will generally answer you.

Is there evidence the seller knew? Previous repair invoices, an insurance claim, a neighbour's recollection, the state of the patching. This is what the case turns on.

How much is it? Be realistic. Litigating a R30 000 repair in the High Court is not rational, and for amounts within the Small Claims Court limit there is a free route. Our small claims checker works out whether it fits, and our guide on what happens if the seller pulls out covers the related breach questions.

The agent may also be liable. Where the practitioner failed to obtain or provide the form, the affected party can look to them, and a complaint lies to the Property Practitioners Regulatory Authority.

Worked example

This example is illustrative. A couple buys a house. Three months after moving in, the first heavy rain brings water down the inside of the lounge wall, and a builder finds that the flashing was removed during an earlier renovation and the wall was skimmed and painted over.

If a disclosure form was completed and the seller declared no water ingress, the couple have a document in which the seller stated a position. The builder's evidence that the wall was deliberately skimmed over the problem, together with the seller's own earlier repair invoice if it can be found, is a fraudulent concealment case, and voetstoots does not protect it.

If no disclosure form was attached to the agreement at all, the agreement is interpreted as though the seller disclosed nothing. The couple do not have to overcome any suggestion that the leak was pointed out to them, and the agent who never obtained the form is exposed as well.

If the form disclosed "previous water ingress on the lounge wall, repaired in 2023", the position reverses. They bought knowing, they did not investigate, and the voetstoots clause answers them.

Three outcomes, one defect. What separated them was a single page, signed before the mandate was accepted, that takes a seller twenty minutes to complete honestly.