The voetstoots clause does not protect sellers who deliberately fail to disclose defects of which they are aware.
Published in Mail & Guardian on 2 February 2006
If you are buying, selling, building or renting a home, having a thorough inspection of the property could save you a load of money and frustration.
Unlike in the United States and the United Kingdom, where home inspections are standard before a sale is concluded, in South Africa there is a standard voetstoots clause which states that the buyer is buying the property “as is”; in other words with defects and all.
Basically, this means the property is sold without guarantees. The seller is therefore not liable for latent defects relating to the property, but the voetstoots clause does not protect sellers who deliberately fail to disclose defects of which they are aware.
According to Stelio Nathanael, CEO of Real Estate Inspectors SA, although the voetstoots clause was designed to protect sellers from comebacks from disappointed buyers, it does not offer much protection.
Although the voetstoots clause in a contract of sale may create the impression that comebacks by the buyers are not possible, the position is not so simple. Sellers, too, may find themselves dealing with unexpected problems, he says.
Some sellers find themselves landed with unexpected expenses when lawyers or estate agents advise them that they are liable for the costs of all undisclosed latent defects, in spite of the provisions of a voetstoots clause in their contract.
Buyers are affected when sellers put their homes on the market and try to get the highest price they can, deliberately hiding the defects that decrease its value. Nathanael warns that the advantage gained by the seller is usually short-lived: when the buyers move in, they tend to react strongly to their feeling of being cheated and often withhold any deposit due, refuse to pay occupational rental, or even try to cancel the sale completely.
Sometimes buyers experience “buyers’ remorse” and make allegations about latent defects that, they believe, a seller should have known about but did not point out when the sale was finalised. This often leads to unpleasant arguments either in the period before registration of the property transfer or afterwards.
So, rather than relying on a dodgy voetstoots clause, it is in the interests of both buyer and seller to have a thorough home inspection done before a sale is agreed. This is similar to an AA report on a vehicle — the buyer feels more confident and the property becomes more attractive.
A home inspection is a visual examination of the outside and the inside of a home, which includes the structure, any outbuildings, the grounds and certain accessible mechanical and electrical items. The inspection produces a report that describes the condition of the property in detail.
An inspection usually takes about one and a half hours. The purpose of an inspection is to determine whether a home has any patent (visible) defects, any broken mechanisms or systems or any other damage as a result of breakdown, wear and tear or weather conditions.
Interestingly, Nathaneal adds, while many people are concerned when buying an older home, the reality is that it is the newer homes that tend to have the most problems.
With older houses, the main issue is maintenance and what costs may be incurred during the first year in a new home.
With newer developments going up at a rate of knots, inspectors are coming across more and more situations where the property has structural defects, Nathaneal says.
Purchasers are also becoming disenchanted with the National Home Builders Registration Council, which is not inspecting properties correctly. Inspectors are also called in by developers to do a thorough check before final payment is made to the subcontractors. People who are building their own homes or doing renovations can also make use of this service.
The lack of skills in the building industry is leading to increasingly substandard work. Last year alone, 14 people died because of incorrectly installed geysers, according to Nathaneal.
What does an inspection involve?
An inspection costs between R1 500 and R3 000, depending on the size of the house. It includes a 400-point inspection covering all aspects of the building and summarises the condition of the visible foundations, glass and glazing, geyser and plumbing system, electrical system, roof and roof construction. The inspectors are even able to send cameras down pipes to look for hairline cracks that could cause problems later on.
The inspector will identifying structural cracks, damp, check for ceiling and wall stains, investigate electrical circuits and plumbing.
The client receives a final conclusive report, including photographs, together with a proper certificate of inspection.
If you are renting out a property, an inspection can also protect both you and the tenant. A full inspection including a photo library is made so that when the tenant leaves it is clear if any damage was done during his or her stay.