The Difference Between Latent and Patent Defects
When you buy property in NSW, the starting point is “buyer beware”, which makes the distinction between latent and patent defects genuinely important. This article explains the difference between latent and patent defects, gives examples of each, and covers what a patent defect means in real estate.
What is a patent defect?
A patent defect is obvious, or discoverable on a reasonable inspection — such as a visible crack, a broken window, or damp staining. Because it is discoverable, a buyer who inspects is generally taken to have accepted it. In a real estate context, this is why pre-purchase building and pest inspections are so valuable.
What is a latent defect?
A latent defect is hidden and would not be revealed by a reasonable inspection — such as concealed structural problems, defective waterproofing behind tiling, or faulty wiring inside walls. These are more complex, because the buyer had no reasonable way to discover them. A seller may have obligations touching on hidden defects, including statutory disclosure, not actively concealing problems, and laws against misleading or deceptive conduct.
Patent Defect (Real Estate) vs Latent Defect: Why It Matters
With a patent defect, the risk usually sits with the buyer, who could have seen it. With a latent defect, the position is more nuanced and depends on the facts — what the seller knew, what was disclosed, and what representations were made. The same distinction arises in building and construction disputes.
Frequently asked questions
What is the difference between latent and patent defects?
A patent defect is obvious or discoverable on reasonable inspection, so the risk usually falls on the buyer. A latent defect is hidden and not reasonably discoverable, which raises questions about the seller's knowledge and disclosure.
What are some examples of latent and patent defects?
Patent: a visible crack, a broken fitting, obvious water staining. Latent: concealed structural damage, hidden defective waterproofing, or wiring faults inside walls.
What is a patent defect in real estate?
It is a fault a reasonable buyer could see or detect on inspection — which is why thorough inspections before exchange are so important.
Buying or selling? Get it checked by Leyden Legal
Understanding defects — and who carries the risk — can save you significant money. Leyden Legal provides clear, practical conveyancing advice to buyers and sellers across Tamworth, Manilla and the North West.
Contact Leyden Legal today before you sign a property contract.
This article provides general information only and is not legal advice. Property matters turn on your specific contract. Please seek tailored legal advice before acting.
