THE VOETSTOOTS CLAUSE IN PROPERTY SALE AGREEMENTS

THE VOETSTOOTS CLAUSE IN PROPERTY SALE AGREEMENTS

Most sale agreements of immovable property contain a clause in terms of which the purchaser thereof agrees to buy the property 'voetstoots'.

This Roman-Dutch term is used to describe the action of buying something as is, as it stands, and in whatever condition it is. When purchasing a second-hand (meaning not newly-built) property, it is to be expected that the property has deteriorated through normal wear and tear, or may be defective to some extent as a result of constant use, or through natural decay over a period of time, to be sold "as is".

The voetstoots clause is a provision in the agreement that stipulates that the purchaser buys the property from the seller as it appears at the time of the sale and thereby indemnifying the seller against claims for damages in respect of any defects on the property, whether patent or latent.

Patent defects are those defects that are visible and can easily be identified upon inspection by any person, for instance, wall cracks, sagging gutters, broken windows, broken tiles, etc. 

On the other hand, latent defects are hidden and not easily discoverable by an ordinary person through reasonable inspection and are hidden from view. Examples are faulty geysers or pool pumps, rusted/blocked pipes, leaking roofs, or where defects like dampness are hidden behind a cupboard.

A seller cannot rely on the voetstoots clause if he was aware of a latent defect and deliberately concealed or failed to disclose it with the intention to defraud the purchaser.

The Property Practitioners Act compels the seller to complete a disclosure form describing all the defects on the property after a thorough inspection. The seller will make a declaration confirming that the items listed in the said form constitute full and proper disclosure. In the case of a dispute arising as a result of the existence of latent defects on the property the parties can rely on this disclosure form in the event of a dispute arising as a result of the existence of latent defects on the property

It is the buyer's duty to inspect the general condition of the property upon purchasing, and the buyer cannot later claim he did not notice such defects. A buyer must take care to protect himself and requests that a home inspection is done by a reputable company.

If a company buys and sells property in the ordinary course of its business such as a developer, it may not include a voetstoots clause in an immovable property sale agreement to a consumer.

The Consumer Protection Act (CPA) provides for a statutory duty of disclosure and as a result, a property developer cannot exclude liability for defects through a voetstoots clause.

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 deception.

It is important for the parties to a property transaction to familiarise themselves with the impact of the voetstoots clause and to carefully read the sale agreement to avoid costly and unnecessary legal battles.