In our previous article, we have shared on important clauses in the Sale and Purchase Agreement (SPA) that you have to know as a homebuyer. One of the clauses is on Defects Liability Period (DLP) in which the developer is responsible for defect for a certain period of time after vacant possession (VP).
Today, we will briefly explain on latent defect claim. What is latent defect? Does the developer have the responsibility for latent defect?
Definition of Latent Defect
A latent defect is considered as a defect which could not be discovered by reasonable means. In the case of Wong Eng v Chock Mun Chong & Ors (1963) 1 LNS 153, latent defect is defined as “a defect which is hidden, concealed or dormant. It is something which exists but, is not sufficiently developed or manifest so as to be visible to the naked eye. Thus, a latent defect is a defect which cannot be detected by reasonable skill, care and examination”.
For instance, damages inside walls which is caused by poor workmanship or materials used during the construction of the property that give rise to existence of cracks on walls after many years of completion can be regarded as latent defect. Thus, can a purchaser claim for latent defect from the developer?
Legal Provision on Latent Defect Claim in Malaysia
In Malaysia, generally, under Section 6(1) of the Limitation Act 1953, there is a limitation of 6 years period for an action to be founded on a contract or tort and such a case shall not be actionable after the expiration of 6 years from the date on which the cause of action accrued.
Further to the above, Section 6A of the Limitation Act 1953 which was inserted in the year of 2018, stated that an action may be brought for a latent defect claim within 3 years after the discovery of the defect provided always that it must be within 15 years from the date on which the cause of action accrued. Section 6A also allows an action to claim damages for negligence not involving personal injuries to be brought and time may start running as soon as an individual has knowledge for bringing an action; the information of the defect, the information on the defaulter and also the right to bring action. In applying Section 6A into cases or issue of latent defect claim, it is significant to determine the date of which the cause of action to be accrued.
These two illustrations provided under Section 6A may assist us in understanding the legal provision:-
To further understand this provision, we may look into the case of Cekap Mesra Development Sdn Bhd v Che Seman bin Abdullah  MLJU 2292.
In our next article, we will share on this case for us to have better understanding on the application of latent defect claim in Malaysia.
Note: Cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court.
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Prepared by Nur Afiqah Din