Greenleaf Property Developers

In a classic example of why buyers should invest in a professional home inspection before making an offer to purchase, the Supreme Court yesterday ordered the eviction of Mr Patrick Ferraris from his R2,2m home in Sunridge Park, Port Elizabeth as a result of a ruling based on the 'voetstoots' clause.

"While the 'voetstoots' clause is controversial and has been used to the advantage of both buyers and sellers," says Gahagan, "it's purpose is essentially to protect the seller and in this case it has been used to do so - with devastating results for the buyer."

After purchasing the luxury home in 2006, Ferraris discovered a number of defects in the property. The Jacuzzi was found to be faulty and the swimming pool leaked, the roof leaked in at least one place, borer beetle was found in the dining room wood panelling, the carport had been built without suitable approved plans. Furthermore, the laundry had been built on top of an open sewer.

The buyer then demanded 'reasonable time' in which to repair the faults and refused to pay the purchase price in the interim, although he did pay occupational rent. The seller, meanwhile, claimed she was protected by the 'voetstoots' clause, which states that the house is purchased as is unless anything to the contrary is agreed in writing in the offer to purchase.

The Supreme Court ruling found that the defects were all latent defects, and that there was no evidence that the seller was guilty of deliberately withholding information from the buyer, and the seller was cleared of responsibility.

"Once again it becomes clear that the buyer has a responsibility when buying a property," says Richard Gahagan, MD of Property24, "and that it's critical to carry out a professional inspection before submitting an offer to purchase." – By Tracey Sandilands