Almost every offer to purchase of immovable property contains a voetstoots clause. I think we can agree that the public is very aware of the voetstoots clause and have a good idea of what it means.

The devil, however, is always in the detail. Latent and patent defects can cause problems, even if there is a voetstoots clause.

What are latent and patent defects

Latent defects are things that are wrong with the property that you cannot see with your naked eye or is not obvious when the property is inspected. Patent defects are defects that are visible with the naked eye or which can be easily detected if the property is inspected.

Purpose of the voetstoots clause

There is an implied warranty by the seller of a property that the property is sold without any defects, even if this is not specifically mentioned in the offer to purchase. (It is implied therefore it will not be mentioned in the offer to purchase).

However, this implied warranty can be excluded by the seller by inserting the voetstoots clause. The voetstoots clause means that the seller is not giving any warranty (implied or not) about the property and the purchaser buys the property as it stands (what you see is what you get).

Value of the voetstoots clause

The voetstoots clause, therefore, excludes the need to disclose latent defects in property sales for this very reason (because the property is sold “as is”). The purchaser can, therefore, if there is a voetstoots clause in the agreement, not claim any defects from the seller if they are discovered later on.

So, does the voetstoots clause exclude the need to disclose latent defects in property sales?

The answer is yes, it does. The voetstoots also means that the seller cannot be held liable for latent defects as well as patent defects. However, please do read further to see how the Consumer Protection Act affected the voetstoots clause.

Exceptions to the rule (as always!)

Even if there is a voetstoots clause, there are circumstances where the purchaser can cancel the agreement. The purchaser can also ask for a reduction in the purchase price if:

  • The seller deliberately concealed the defect at the time of the sale

  • If the seller knew of the defect and did not disclose it at the time of the sale

  • The seller made a deliberate (fraudulent) material misrepresentation.

Enter the Consumer Protection Act to affect the voetstoots clause

In terms of the Consumer Protection Act (“CPA”), a seller cannot be protected by the voetstoots clause any longer if the seller was aware of the defects in the property at the time of the sale. The CPA says that there is an implied warranty of quality by the seller with regards to all property transactions that fall within the ambit of the CPA.

Because of the foregoing paragraph, the best way for a seller to protect him/herself would be to describe the specific condition of the property in detail so that the purchaser can take note of the condition of the property that is being purchased.

To protect him/herself further, the seller should ensure that the offer to purchase (sale agreement) includes a clause that confirms very clearly that the purchaser expressly agrees and accepts the current condition of the property, has inspected it him/herself. This would help the seller in that if the purchaser has been told of all the defects in the property that the seller is aware of and it is contained in the sale agreement (usually as an annexure) and the purchaser has accepted these defects. In this case, the purchaser cannot hold the seller liable for any defects so discovered later.

Most sale agreements contain annexures with a “disclosure form” or “list of defects” where all defects that the seller is aware of is listed. Make sure your agreement contains such a list.

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