Contracts of sale of property always include a “voetstoots” clause. Sellers and purchasers enter into this agreement without really understanding what this clause entails.
Source: National Consumer Forum
What is the meaning of “voetstoots”
This term generally describes the selling of the property “as is” or in whatever condition it is, i.e. with all its latent and patent defects.
What is a patent defect?
It is a defect in which a lay person would see with a normal inspection, i.e. a defect which will be clearly visible, such as a cracked window. Purchasers are always liable for patent defects, unless the contract specifies otherwise, i.e. in the special conditions it is agreed between the parties that the seller will replace the cracked window.
What is a latent defect?
It is a defect that would not be found with a normal inspection, i.e. a defect which is not immediately obvious, such as a faulty geyser.
What is the effect?
The seller is not liable for any defects unless the purchaser can show and prove that the defect was latent and that it was hidden by the seller with the intention to defraud.
What is the seller’s responsibility?
The seller is only excused from liability for latent defects where he was not aware of the problem at the time of the sale.
What is the buyer’s recourse?
- He cannot obtain a quotation and deduct the repair costs from the purchase price.
- He cannot refuse to pay occupational rental unless the defect seriously restricts his occupation
- He cannot repudiate or cancel the sale contract.
A buyer’s proper recourse is to institute legal action and sue the seller within a period of three years. The best way, however, is for the conveyancer to try and solve the matter amicably between the parties.
Duty of the agent
An estate agent is only obliged to inspect the property for obvious patent defects and to enquire from a seller as to what known latent defects exist, and to disclose them to the purchaser before signature of the contract.
Advice to buyers
All intended purchasers should make a thorough inspection and acquaint himself with the general condition of the property. You, as buyer, should be able to make an informed decision with all the facts before you, to buy “warts and all” or not at all.
Advice to sellers
“Do to others as you would have them do unto you.”
This was taken from Property Professionals, Tinus Strydom Property Group, Vol 12.8, August 2006