It is standard practice for a voetstoots clause to be inserted into a property sale agreement. The clause specifies that the buyers accept the property ‘as is’, which puts the burden on the buyers if unexpected defects are discovered at a later stage.
Many buyers and sellers have only the vaguest idea of how the voetstoots clause operates, says Grant Gunston of Gunston Strandvik Mlambo Attorneys.
“Very often, the defects will become apparent in the period between the sale document being signed and the transfer of the property. Difficult circumstances often arise when defects are discovered at this late stage. However, an experienced estate agent and conveyancer, working together, can help negotiate a satisfactory conclusion even when the sellers and buyers are feeling considerable stress,” he says.
Proof
For the voetstoots clause not to apply, the buyers would have to prove that the sellers knew of the latent defects and failed to disclose them - and deliberately did this intending to defraud the buyers.
“Non-disclosure of latent defects is a serious matter,” says Gunston, “but it can be hard to prove the sellers knew about it. In our experience, most sellers are open, and if they did not draw the buyers’ attention to the problem, it is very probable that they did not know or had forgotten about it.
“Sometimes, if sellers have owned the property for some time, they will have lived with the defects for so long that they are no longer aware of them. In that situation, it would not be possible to accuse them of hiding the defects from buyers.”
Disclosure
The recently enacted Property Practitioners Act provides a measure of protection for buyers with the stipulation that property practitioners must ensure that sellers complete and sign disclosure forms before they accept a mandate to sell a property. The disclosure form lists all defects on the property that are known to the sellers.
In terms of Section 67 of the Act, a property practitioner may only accept a mandate with this form. Without the disclosure form, it will be interpreted as if no defects or deficiencies on the property were disclosed to potential buyers. Any property practitioner who accepts a mandate without this form being attached to the agreement of sale or lease agreement may be held liable by the buyers if any defects subsequently come to light.
However, there is still a strong onus on potential buyers to inspect the property thoroughly and to look for defects such as water leaks or signs of damp.
Resolution
Gunston says that if the cost of repairs is small, it may pay not to litigate because that can be expensive, and the delay would be inconvenient.
Conveyancers usually act on behalf of sellers, and it is their duty to protect their clients’ interests. However, a good lawyer can often help resolve these matters by amicable agreement, which is usually in both parties' interest.
Writer: Sarah-Jane Meyer