Most sale agreements of immovable property contain a clause in terms whereof the purchaser agrees to buy the property voetstoots. The voetstoots clause is a common law principle which stipulates that the purchaser buys the property from the seller as is and thereby frees the seller from any liability for patent or latent defects. Patent defects are those defects that are visible whereas latent defects are hidden and not easily discoverable through reasonable inspection.
Although this clause is designed to protect the seller, they cannot hide behind the voetstoots clause if they deliberately conceal a defect or fail to disclose a known defect. An example of where a seller could successfully rely on this clause was seen in Haviside v Heydricks and Another 2014 (1) SA 235 (KZP). In this case the purchaser later discovered that there were no approved building plans for a garage built on the property and consequently the structure was rendered illegal. The court held that the absence of statutory approval such as building plans is a latent defect. However, the seller successfully relied on the voetstoots clause as it was proven that they were not aware of the latent defect and subsequently did not deliberately conceal it with the intention to defraud. In Ellis and Another v Cilliers NO and Others 2016 (1) SA 293 (WC), the purchasers were successful in proving that the seller was aware of a range of defects in the property and had deliberately failed to disclose them to the purchaser. These defects included decaying foundation, support beams and pole and a false ceiling and cement floor which was applied over timber flooring to create the illusion that the floor was level. The court held an important point that even if the seller does not consider the uneven floors a defect, she still had an obligation to disclose unusual qualities of the property to the purchaser.
In saying this there is a lot of difficulty in proving that the seller was aware of the latent defect and deliberately failed to disclose it at time of sale. It is now a common and recommended practice that the parties 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 a 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.
To the property developers – you have no “voet” to stand on. If a company buys and sells property in the ordinary course of its business such as a developer, they 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. If this same developer were to sell his own property, the CPA would not apply as he would not be selling his home in the ordinary course of his business. A private sale of property does not fall within the ambit of the CPA.
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.
Storm Warmback successfully obtained her Bachelor of Law (LLB) in 2017 through the University of the Witwatersrand. Click here to view her profile.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)