The mandatory disclosure form: what sellers must declare

The mandatory disclosure form: what sellers must declare

The mandatory disclosure form is a document where a seller or landlord lists the defects they know about in a property. If an estate agent is involved, the law requires you to complete and sign it before the agent can take on your property. Fill it in honestly and completely. A missing or unsigned form works against you, and hiding a known problem can cost you far more than the repair.

Who must complete it

The Property Practitioners Act, which came into force on 1 February 2022, deals with the form. It says a property practitioner (an estate agent or similar professional) may not accept a mandate to sell or let a property unless the owner has provided a completed, signed disclosure form. The practitioner must also give a copy to anyone who is about to make an offer.

The form must be attached to the sale or lease agreement. If it is missing or unsigned, the agreement is read as though you disclosed no defects at all. That can leave you answerable for faults you did not mention, or did not realise needed mentioning.

Private sellers should know that the Act binds practitioners, so a private seller with no agent does not have this legal duty. But you should still tell buyers about defects you know of. The reason is in the next section.

Why honesty protects you

Most sale agreements contain a voetstoots clause, which means the buyer takes the property “as is”. It protects you from claims for hidden defects (called latent defects) that you did not know about. But the courts have held that it does not protect a seller who knew of the defect and deliberately hid it with the intention to deceive. The buyer has to prove that, and knowing about a problem is not enough on its own. Still, concealment is the risk you do not want.

Some commentary suggests that misleading half-truths can also count against you. So if you are unsure whether something counts, say so on the form.

If you are a developer or you sell homes as a business, you are treated differently. The Consumer Protection Act applies to sellers in the ordinary course of business, and a blanket voetstoots clause does not take away the buyer’s rights to goods of good quality. You may sell in a specific condition only if the buyer was told and accepted it. Take advice if this describes you.

What to declare

The form is usually a list of questions. Answer each one, and add detail where you can. You will usually be asked about matters such as:

  • roof leaks and past repairs;
  • damp, cracks and structural problems;
  • plumbing and electrical faults;
  • alterations and additions, including whether plans were approved;
  • boundary or neighbour disputes;
  • pests, such as borers or termites;
  • problems with the body corporate or homeowners’ association, including special levies.

The wording of the official form can change, so use the version your agent gives you. Do not guess. If you do not know the answer, say that you do not know, rather than ticking “no”.

Tips for filling it in

  • Walk through the house and garden before you start, and check the roof, ceilings and under sinks.
  • Look at old invoices for repairs, as they remind you of past problems.
  • Describe the problem and what was done about it. A repaired leak is a smaller issue than a hidden one.
  • Keep a signed copy for your records.
  • If something changes between signing the form and the sale, tell your agent in writing.

Buyers read these forms. A frank form with repairs explained often builds trust and speeds up negotiation, because the buyer knows what they are getting.

What to do next

This article is general information for South African readers, not legal, financial or tax advice. Rules and rates change, so check your own situation with an attorney, your bank or a tax practitioner. Our property calculators can help you work out the numbers.

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