This is the warning from Lanice Steward, MD of Anne Porter Knight Frank (APKF), who adds that “a seller, aware that certain faults have not been reported to the buyer, may be tempted to ask the buyer to sign an agreement (after signing the sale deal) to the effect that he absolves the himself of any blame for defects which have not been revealed at the time of the sale”.
“This practice, although occasionally resorted to, is not ethical or acceptable,” said Steward.
The voetstoots clause in any South African sale agreement document, said Steward, makes it clear that, although the buyer has no recourse if latent defects are discovered, if these were likely to have been known to the homeowner, he can be sued to have them put right.
If, for example, certain timbers were rotting, an alarm system did not work or a borehole pump was out of action, that would not be seen as a latent defect because the buyer would presumably have known about such problems.
In a really serious case of hiding faults from a seller, said Steward, it is conceivable that a court of law could declare the entire sale null and void and impose penalties on the seller. In practice, she said, the voetstoots clause has usually been allowed to stand but there are serious consequences when non-disclosure becomes suspected.
Linda Erasmus, CEO of Fine & Country, provides some more in-depth information on voetstoots.
“It is important for buyers and sellers to understand the difference between patent and latent defects. Patent defects are flaws that are clearly visible upon normal inspection of the property. These defects include for instance cracks, broken windows and missing tiles. Latent defects on the other hand are faults that are not immediately visible or obvious, such as faulty geysers, leaking roofs as well as defects that are concealed such as damp behind a cabinet.”
She says the voetstoots clause liberates the seller from liability of patent defects, but exemption is not absolute for latent defects. “The clause only protects sellers from latent defects that they were not aware of and did not attempt to hide from the buyer. If the seller was aware of the defect and concealed it from the buyer, then the seller is liable for the costs.
“In such an instance the seller may be called upon to refund part of the purchase price or even accept cancellation of the entire sale. The burden of proving that the seller knew about the defects and deliberately concealed them, is on the purchaser. Legally, the seller is responsible for any known latent defects for up to three years after the sale.
Erasmus advises buyers to get a professional inspector to inspect the property for them before a sale is agreed. “A home inspection is a visual examination of the outside and inside of a home at the end of which a formal report will be provided, describing the condition of the property in detail.”