Every sale agreement of a normal residential property (house and its usual outbuildings) will contain a voetstoots clause.
The word voetstoots is the action of buying something ‘as is’, that is ‘just as it stands’ in whatever condition it is, warts and all.
An example of the wording of a voetstoots clause is as follows:
The Property is sold voetstoots in the condition in which it stands and the Seller gives no warranty with regard thereto, whether express or implied.
The voetstoots clause is essential to the purchase of all second hand residential property which may well have deteriorated through normal wear and tear or which may be defective to some extent as a result of its constant use or through natural decay over a period of time. 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) from doing anything to jeopardize the actual sale contract. It is important to know what the effect of such a clause is and to what extent it protects the Seller.
Voetstoots is not designed to shield Sellers who engage in fraud or bad faith dealing by making false or misleading representations about the quality or condition of a particular property. It merely summarizes the concept that a purchaser must examine, judge, and inspect a property considered to purchase.
Whilst this clause will protect a Seller, the protection is limited.
THE SELLER’S RESPONSIBILITIES: THE DUTY TO DISCLOSE
The Seller has the “duty to disclose” any defects which are latent, in other words any defects which are not obvious. If the Seller hides defects in the property on purpose, the Seller will not be protected. Therefore the voetstoots clause will not protect a Seller who knows of a defect in the property but does not tell the Purchaser about the defect. Sellers should also be aware that the law goes even further than a simple failure to tell the Purchaser about a defect in that the voetsoots clause it will also not protect a Seller who tells a half truth.
SELLERS REMEMBER: Disclose any defects to avoid problems after the sale
THE PURCHASER’S RESPONSIBILITIES: THE DUTY TO INSPECT
The Purchaser also has certain responsibilities when buying property. This responsibility is the “duty to inspect”. The Purchaser must inspect the property and must be aware of the condition of the property that he is about to buy.
If the Purchaser sees defects that are not acceptable, the Purchaser must write into the offer to purchase that the problem is to be fixed by the Seller prior to registration of transfer. If the Seller accepts the offer to purchase with this condition, that Seller has then agreed to fix the problem.
BUYERS REMEMBER: Make a thorough inspection and acquaint yourself with the general condition of the property.
A voetstoots clause at face value discharges a Seller from liability for all patent and latent defects. Before looking at how far this protection goes, it is important to explain the distinction between these two different types of defects.
Patent Defects are flaws that will be clearly visible on a normal inspection of a property. They include wall cracks, sagging gutters, broken windows, missing tiles and the like. It is a Buyer’s duty to acquaint himself with the general condition of a property on purchasing it and he cannot later claim he did not see such defects.
The test is an objective one, namely what could have been seen on the original inspection of the property.
Latent Defects are faults that are not immediately obvious and are hidden from view. These include faulty pool pumps and geysers, rusted internal pipes, leaking roofs (except where stain marks make the leak obvious) and defects that have been concealed such as dampness behind a cabinet.
The test is what could not normally be seen on inspection
While the voetstoots clause liberates a Seller from any liability for patent defects, this exemption is however not so in the case of latent defects.
THE SELLER’S RESPONSIBILITY
In terms of numerous South African court cases a Seller is only excused from liability for latent defects where he himself was not aware of the problem at the time of the sale. If a Seller knowingly conceals a latent defect he will be liable to the Buyer for the cost of its repair. In such a case he cannot rely on any clause in the original contract making no warranties as to the condition of the property.
A Seller will thus be liable for all cracks or dampness and other similar faults deliberately hidden from view. He is also responsible for latent defects which he is presumed to have been aware of, such as any appliance, which is not functioning properly. Examples are geysers delivering only lukewarm water, defective electrical points, and the like.
THE BUYER’S RECOURSE
It is very important for a Buyer to know what his rights are in such cases. By law he cannot do any of the following:
It is he, and not the Seller, who will be in breach of contract if he takes any of these actions. By law his proper recourse is to institute an action for damages and sue the Seller. This will obviously not appeal to the Buyer and the best way to resolve the problem is to ask the Conveyancer doing the transfer to settle the matter amicably with the Seller. Ideally he should arrange a refund of the costs of repair to the Buyer on registration of transfer. It is in the best interests of both parties to agree to this.
THE ISSUE OF FRAUD
It would be opportune at this stage to introduce a very important issue, and that is that the “voetstoots” clause does not protect the Seller against fraud.
For example, if the Seller knows about a particular problem, is aware of a latent defect, and fails to disclose details of that defect to the purchaser while knowing of its existence, this is pure misrepresentation; and misrepresentation is the essence of fraud. Such misrepresentation can occur in one of two ways
1. EXPRESS MISREPRESENTATION OR
Here are the two scenarios:
In both of the above cases the Seller has defaulted – by either denying the presence of a latent defect of which he/she is aware when asked, or by failing in his/her obligation to disclose such a defect, although not questioned specifically on that issue. In both cases there has been misrepresentation by the Seller to either the Purchaser or Agent by being aware of the defect and fraudulently not disclosing it or concealing the defect from the Purchaser or Agent. His/her expressed declaration of silence constitutes blatant dishonesty
There are two other important issues that also need to be covered as they often affect sales of immovable property.
DEFECTS CAUSED AFTER A SALE
Who is responsible for damage done to a property after a sale contract has been signed but before registration of transfer takes place? For example, a negligent motorist might smash the front wall of the property or a geyser might suddenly burst, flooding the house and damaging its fitted carpets. Responsibility will lie as follows:
Buyers who only complain of defects some months after registration of transfer has taken place occasionally exasperate Sellers and Estate Agents. There are two issues here. Firstly the discovery of defects that only appear later. For example, a Buyer may only experience a major roof leak when the first summer rains appear long after registration. If it can be shown that the Seller knew or must have known about the leak and consciously failed to disclose it, the Buyer can sue him for his repair costs.
The second issue concerns a delayed discovery of defects by the Buyer. For example he may only first complain about a wall crack six months after taking occupation. It will be very hard to prove that the Seller knew about a defect which the Buyer himself took so long to discover or that the defect existed at the time of the sale. In such cases the Buyer will have no recourse against the Seller.
Far too many Buyers want to hold their Estate Agents liable for latent defects they only discover sometime after the sale has been concluded. This is particularly the case where a defect has only been discovered months after the transfer has been registered.
An Estate Agent is only obliged to inspect the property for obvious patent defects, to enquire from a Seller as to what known latent defects exist, and to then disclose them before signature to the Buyer.
Once having done 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. A Buyer’s recourse will inevitably rest against the Seller alone and the Estate Agent should not be harassed in any way.
It is important to us at Louise Reyneke Properties to make the experience of buying or selling property as easy and informed as possible. Defects seem to be one of the most contested problems that we encounter during the sales process. We have added a defects disclosure listto our Offer to Purchase that is designed to disclose known defects to potential purchasers and constitutes the honestly held beliefs of the Seller of the property.
However, the duty still rests on any potential Purchaser to properly and thoroughly examine the property and if concerned about any potential defect/condition to obtain independent advice from an appropriate expert before concluding a binding sale agreement.