Voetstoots Clause – What you need to know

The seller has a duty to disclose, and the purchaser has a duty to inspect.

When selling or purchasing a property, clients are presented with the Voetstoots clause in every sale agreement. The clause essentially encompasses that the seller will not be held liable for any latent or patent defects at the property and that the purchaser is purchasing “As is, or as it stands.” 

It is very important to know how to handle the topic of defects. Let’s start by differentiating between the two:

• Latent Defects are faults that are not immediately detected through reasonable inspection and include: a leaking pool, roof, and defective geyser. It usually manifests over a period.
• Patent Defects are clearly visible and usually picked up on inspection. It includes cracks, damp and damaged gutters.

Latent and Patent defects can cause a huge rift between a seller and purchaser. It is the estate agent who should be involved from the onset to ensure that a diligent inspection has been carried out. This is done by way of a disclosure form.

There are a number of well-known South African court cases dealing with Latent and Patent defects. In Van Der Merwe v Meades [1], whenever a seller was aware of a defect and did not disclose it he would be intentionally defrauding the purchaser and could not escape liability even if there was a clause in the sale agreement stating that he/she gave no warranties and was not liable for any misrepresentations.

Very important from this is the purchaser’s right to recourse for these types of defects.

Also keep in mind that by law the purchaser cannot do the following:

1. Refuse to pay occupational rental;
2. Obtain a quotation and deduct the cost of repairs from the purchase price; and
3. Cancel the contract.

However, there are situations where the purchaser does exactly the above and can sit in a situation that he/she is committing to a breach of the agreement.

Latent Defects which the seller can be held liable for:

Hidden Faults in the Property

These are deemed obvious in that the seller must have known about the issue and the purchaser would have a legitimate claim for any cost of repairs.

Defective Machinery/appliances in the property

Items on a property are intended to function and should be in “working order”. The seller cannot rely on the Voetstoots clause should the purchaser find that an appliance is not working.

The above is deemed to affect the use of the property.

Solutions to Latent Defects

The Estate agent should:

• Enquire from the seller as to what defects on the property is known to him/her and immediately disclose it to the purchaser;
• Ensure the seller completes the mandatory disclosure form;
• Obtain quotations from the seller showing the cost of repairs and the Seller should remedy the defects at his/her own expense;

The conveyancer should be actively involved in the matter to amicably resolve any disputes and should take on the role of an arbitrator.

Conclusion

It should always be remembered that the seller has a duty to disclose, and the purchaser has a duty to inspect. No purchaser can expect to have a brand-new property. Normal second-hand residential properties will always exhibit wear and tear.

[1] Van Der Merwe v Meades 1991 (2) SA 1 (A)

For more information: MichelleO@hammondpole.co.za