Beware Voetstoots

Private Property South Africa

So you’ve found your dream home and are ready to sign on the dotted line. However, upon reading the sale documentation, you come across a ‘voetstoots’ clause stating that you accept the property ‘as is’ which troubles you. And rightfully so.

Voetstoots is a common law provision which protects the seller from being sued by the buyer in the event of any patent or latent defects manifesting post sale. As things currently stand, the only time an aggrieved buyer who has signed such an agreement could successfully sue a seller would be if the buyer could prove that the seller had known about a defect and deliberately concealed this information from the buyer.

Needless to say proving a seller has deliberately concealed information would (typically) be difficult and costly to prove. A case study submitted by Sloan Wilson of Wilson McWilliams Inc. illustrates this point to a tee. According to Wilson, a buyer purchased a house with a thatched roof voetstoots from a seller. Following heavy rains, the roof leaked and the buyer commissioned a thatch roof expert to inspect the roof. The expert found that the roof had been incorrectly engineered and would need to be replaced in its entirety to the tune of R350 000.

The buyer took the seller to court citing that the seller knew about the defect at the time of sale. Evidence showed that the seller and his agent had in fact disclosed to the purchaser that the roof had previously leaked and that repairs had been made to remedy the leak. The buyer claimed that the repairs must have been a “temporary fix” and that the full extent of the defect had not been disclosed.

The seller denied the charge and the purchaser was unable to prove that the seller was aware of the full extent of the defect. The court subsequently accepted the seller’s version of affairs and the buyer lost the case.

But what of the Consumer Protection Act (CPA) in cases such as these? As per the CPA in its current form, the inclusion of a voetstoots clause is not prohibited and ‘once-off’ private sellers are not obligated by the CPA to make full disclosure. Currently the Act only applies to ‘those who sell in the normal course of their business’ in other words, developers, estate agents and investors.

John Graham, CEO of home inspection company HouseCheck says estate agents are accountable in terms of the property marketing information they provide. As such, he says agents are now trying to shift accountability back to sellers by asking them to sign property disclosure forms, the reasoning being that an agent is not a qualified home inspector and cannot be expected to know about latent defects unless they are disclosed by the seller.

It could be argued that this is a fair premise but the problem remains that unless the buyer and/ or seller are qualified building inspectors, it is unlikely that they will be able to identify latent (and in some cases even patent) property defects.

Despite the fact that the CPA currently does not seemingly provide practical protection for property buyers, buyers can take heart from the fact that the Act states that consumers have the right to be fully informed regarding the goods they are purchasing. In the context of a property purchase, this means that a buyer has the right to know everything about a property in order to make an informed decision.

With this in mind, Graham says buyers should refuse to sign a sale agreement containing a voetstoots clause and insist on the insertion of a clause making the offer conditional on the buyer accepting the defects documented in a professional home inspection report. Until the CPA is changed, he says this is the only way home buyers can protect themselves. He adds that if sellers and/ or agents refuse to sell the property on these terms, Graham says buyers should question what information regarding the property is potentially being hidden and consider walking away from the deal.

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