Greenleaf Property Developers

Much has been written and said about the controversial "voetstoots" clause in sales agreements, but what does this term as well as its associated terms actually denote?

'Voetstoots'
Voetstoots is a term used to describe the action of buying something as is, in whatever condition it is in, with its known and unknown defects. If the seller stipulates that the property is for sale "as is", or "voetstoots", the seller is not liable for any patent defects or latent faults that were unknown to him/her.

It is the responsibility of the purchaser to prove that the seller knew or should have known about the latent fault if the purchaser does not want to pay to rectify the problem. Legally, the seller is responsible for any known latent defects for up to three years after the sale.

"Every sales agreement of a normal residential property will contain a voetstoots clause freeing the seller from any liability for patent and/or latent defects, which the buyer may later find when taking occupation of the property. It is important to know what the effect of such a clause is and to what extent it protects the seller," says Tony Ketcher, managing director of Seeff properties Randburg.

Sometimes, the buyer can cancel the contract and/or claim a refund of a portion of the purchase price in the case of a serious latent defect. "A buyer should always obtain from the seller any warranties and documentation relating to repairs and maintenance of the property."

Patent defects
A patent defect is one that is obvious when viewing a home. Examples would be cracks in windows or walls, a broken light switch or a cracked swimming pool surround. These should be listed for the seller to repair before a buyer moves in, unless the home is being bought voetstoots.

Latent defects
Latent defects are not always detectable upon inspection. They can be revealed on closer inspection or investigation or they may become apparent over time. An example would be damp patches that are concealed by the owner and which only become obvious during heavy rains.

What is the estate agent's responsibility in terms of defects?

"Buyers often try to hold their estate agents liable for latent defects that they only discover after the sale has been concluded. This is particularly the case where a defect has only been discovered several months after the transfer has been registered. 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 then disclose them to the buyer before the agreement is signed," says Ketcher.

After this, the buyer's recourse is against the seller alone. "Often a seller, on being challenged about an undisclosed latent defect, will falsely claim that he had informed the agent about it prior to the sale. However, a buyer's recourse will rest against the seller alone and not the estate agent," adds Ketcher.

In terms of the laws governing these issues, it is clear that if a seller knew about a latent defect and deliberately concealed the defect to induce the purchaser to buy, the seller cannot hide behind the voetstoots clause.

The voetstoots clause only protects a seller against latent defects he did not know about or, if he knew about them, he did not deliberately conceal them from the purchaser. Its basic purpose is to shield the seller from any action by the buyer, on discovering any defects he was not aware of when purchasing the property. However, the burden of proof - proving that the seller did know about the defects and that he deliberately concealed them - is on the purchaser.

"Voetstoots and defects can get complicated. Prospective buyers and sellers are welcome to contact our offices for further information and advice," says Ketcher.

For more information contact Tony Ketcher on 011 476 3536