Most residential sale agreements contain a clause that reads “voetstoots”. But what does it really mean to the buyer of the property? Firstly, this interesting term derives from its literal meaning in Afrikaans that is, “with a shove of the foot.” It therefore describes that the purchaser agrees to buying the property “as it stands” or “as is” – yes, what you see is what you get…
The implication of such a clause is that a Purchaser agrees to buy the property as it appears at the time of the sale and he or she cannot claim at a later stage, against the seller, if she finds certain defects. In other words, this clause frees the Seller from any liability for any defects.
As with every other law there are exceptions.
Now, the exceptions to a “voetstoots” clause are:
- The property must have had the defect at the time of the sale;
- the Seller had to know of the defect;
- the Seller did not disclose the defect; and
- the Seller deliberately concealed the defect with the belief that if the purchaser would see the defect, the sale would either not have continued or there would be a drop in the purchase price.
Following this, it becomes clear that the Seller has certain responsibilities…
…The Seller is responsible for the disclosure of any defects that are latent. Latent defects are faults that are not immediately obvious and that are hidden from view. The test is any defects that could not normally be seen on inspection or that are not obvious. He or she will not be protected by the “voetstoots” clause if latent defects are hidden or told as ‘half-truth’. The “voetstoots” clause is also not a defense for the Seller to use against any fraud he or she committed. Therefore, if he or she knows about a specific latent defect but fails to disclose its details, it is a misrepresentation and, in essence, fraud. Such a misrepresentation can occur through an expressed misrepresentation or deliberate non-disclosure.
And, of course, the Purchaser also has a responsibility…
…The Purchaser has the responsibility of the “duty to inspect”. He or she must inspect the property and be aware of the condition of the property that is about to be bought. If he or she comes across any defects that are not acceptable, it needs to be written into the offer to purchase that the problem is to be fixed by the Seller prior to registration of transfer. If the Seller accepts the offer to purchase with this condition, he or she has then agreed to fix the problem.
The Seller is released from liability for all patent defects. These defects are faults that are clearly visible through a normal inspection of the property, such as cracks in the walls and broken tiles. Also, the Purchaser has duty to inform him- or herself of the condition of a property upon purchasing it and if he or she doesn’t, it cannot be claimed at a later stage that these defects were hidden or not disclosed.
The Consumer Protection Act (CPA)
The CPA is only applicable in instances where the transaction falls within the ambit of the CPA, which describes a ‘transaction’ as agreements concluded in the ordinary course of business by a Supplier and a Consumer. An example of this is where a property company is in the business of buying and selling property. They will not be allowed to include a “voetstoot” clause in its sale agreements when selling properties. Private “once-off” sale agreements are not transactions that will fall within the ambit of the CPA.
Estate agents should note that they act in their ordinary course of business when they are given a mandate by a Seller to sell property. As a result, an estate agent will not be able to rely on the protection of the “voetstoots” clause, but will fall under the scope of the CPA.
The Purchaser’s rights
The Purchaser can demand that the Seller repair the defects or institute an action for damages against the Seller. Depending on the terms of the agreement, the Purchaser won’t be able to cancel the contract nor claim for a reduction in the selling price.
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