Is the voetstoots clause still applicable?

Is the voetstoots clause still applicable?

Private Property South Africa
Sarah-Jane Meyer

Voetstoots is a Dutch word that means “with a shove of the foot” and implies that the buyer takes the property in its present condition - whether or not it has patent or latent defects.

Latent defects are hidden or dormant defects, but they are usually detectable if you look hard enough for them. Patent defects can be openly seen, discovered, or understood to be defects.

Offer to Purchase

Some sellers believe the voetstoots clause in the Offer to Purchase (OTP) can be used as a disclaimer to protect themselves against any claims from buyers if a fault is found after signing the document. However, this is not the case. By law, the seller must disclose any defects known to all parties involved in a property transaction, including the buyer and the estate agent representing the sellers.

If sellers know about the defects, they may not use the voetstoots clause to avoid repairing them or disclosing them to buyers. To prevent this practice, the Estate Agency Affairs Board recommends that buyers ask the sellers for a full report, listing the condition of key items on the property.

If sellers don’t provide this report, buyers should request an inspection. This would be for the buyers’ account, but it is worth doing if there are particular questions the sellers or their agent are unable to answer.

Some sellers may try to conceal defects they are aware of in the hope of achieving a higher selling price. However, this can easily rebound on the sellers. Buyers are well within their rights to cancel the transaction – without any penalties - if they find that the property had a defect known to the sellers at the time of the sale.

Sellers also run the risk of being sued for damages. An example would be if a buyer lost the opportunity to submit an offer for a different property due to the deception.

Consumer Protection Act

Since the implementation of the Consumer Protection Act in 2011, many property buyers and sellers are under the impression that the ‘voetstoots’ clause in the OTP is no longer applicable. However, this is incorrect, says Nelio Mendes, estate agency SAProperty.com’s marketing manager.

“The voetstoots clause is still very valid and applies when the seller’s ordinary course of business is not property, for instance, developers, investors or speculators,” he says.

The bottom line is that both buyers and sellers should enter into a property transaction with the expectation that the other party is acting in good faith.

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