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Defects in your new home and the Voetstoots Clause

(The so-called protection afforded to devious Sellers)

voetstoetsMost people will agree that buying immovable property is generally one of the biggest financial decisions a person will make, yet very few people go the extra mile to ensure that there are no major defects in their prospective home purchase. A dishonest Seller can leave you with badly burnt fingers, a severely bruised ego and a dented chequebook.

When you purchase property, there is an implied warranty at common law that the property sold is free of defects. A Seller can however contract out of that implied warrantee by stating that the property is sold as ‘as is’, by including a voetstoots clause in the sale agreement. Most sale agreements contain a voetstoots clause, which may exonerate the Seller from liability for defects, which the Purchaser may later discover.

In this article we will explain the voetstoots clause, the difference between a latent and a patent defect, and how a Purchaser may be protected against a dishonest Seller.

Voetstoots Clause

The legal principle of the voetstoots clause is found in our common law and literally means a thing is sold “with a shove of the foot”. It is simply stated, buying a property "as it stands”, with defects and all.

This implies that what you see, is what you get. You will not be entitled to claim against a Seller for defects which are easily identifiable upon inspection of the property, or which are later discovered.

There are however some exceptions to this rule.

Before venturing into a discussion on the extent of the protection afforded to a seller by a voetstoots clause, it is necessary to first consider the distinction between latent and patent defects. 

Patent Defect

This is a defect that is, or should reasonably be, easily identified by a reasonable person upon inspection of the property prior to the purchase thereof.

Patent defects include inter alia wall cracks, sagging gutters, broken windows and missing tiles.

Latent Defect 

This is a defect that is not apparent upon ordinary inspection of the property by a reasonable person.

Simply stated it is a defect that only an expert would be able to identify or one that would only later become apparent.

Latent defects to a property may include inter alia rising damp, faulty pool pumps or geysers, rusted internal pipes and leaking roofs.

The position with respect to latent defects was summed up by Corbett JA in Holmdene Brickworks (Pty) Ltd v Roberts Construction Co. Ltd 1977 (3) 670 (A) at 683H-684A, where the following was stated:

“Broadly speaking in this context, a defect may be described as an abnormal quality or attribute which destroys or substantially impairs the utility of effectiveness of the res vendita, for the purpose for which it has been sold or for which it is commonly used … Such a defect is latent when it is one which is not visible or discoverable upon an inspection of the res vendita.”

Non-disclosure of Defects and the protection of a Voetstoots clause

It is the Purchaser’s duty to acquaint him or herself with the general condition of a property before concluding an offer to purchase.

The Purchaser should thus, as a general rule, observe and address patent defects upon presenting an offer to purchase.

A Voetstoots clause will protect the Seller from liability as it is generally accepted that the Purchaser knew or ought to have known of such defect, but nonetheless proceeded with the purchase of the Property.

If the defect is a parent one, the Purchaser cannot at a later stage claim that he did not have knowledge of such defect and a voetstoots clause will indemnify the Seller from being sued for a non-disclosure of a patent defect.

In this regard and in the matter of Odendaal v Ferraris 2009 (4) SA 313 (SCA) it was held that:

“As a general rule, where a buyer has an opportunity to inspect the property before buying it, and nevertheless buys with its patent defects, he or she will have no recourse against the Seller”

This rule differs when it comes to latent defects.

A Seller has a duty to reveal to the Purchaser latent defects to the property at the time of concluding the agreement of sale.

What should be noted is that the duty upon the Seller to disclose the latent defect exists only of the Seller has knowledge of such defect.

The question is whether a Seller can “hide” behind a voetstoots clause in circumstances where he has concealed the latent defect from the Purchaser. The appellate division held in the matter of Van der Merwe v Meades 1991 (2) SA 1 (AD) 8 that:

“A Seller would be deprived of the protection afforded by a “voetstoots” clause where the Purchaser can prove that the Seller:-

  1. Was aware of the defect in the merx at the time of the making of the contract, and
  2. dolo malo concealed its existence from the Purchaser with the purpose of defrauding him.”

In Odendaal v Ferraris 2009 (4) SA 313 (SCA) Cachalia J A at page 537 says the following:

“It is trite that if a buyer hopes to avoid the consequences of a voetstoots sale, he must show not only that the Seller knew of the latent defect and did not disclose it, but also that he or she deliberately concealed it with the intention to defraud (dolo malo).  Where a Seller recklessly tells half-truth or knows the facts, but does not reveal them because he or she has not bothered to consider the significance, this may also amount to fraud.  But as the Court has said fraud will not lightly be inferred, especially when sought to be established in motion proceedings. And where a party seeks to do so the allegations must be clear and the facts upon which the inference is sought to be drawn succinctly stated.”

Remedies

Should you as a Purchaser be faced with the situation where the Seller has concealed a latent defect, with the intention to defraud or mislead you, you will be permitted to institute action against such a Seller.

You may claim a reduction in the purchase price, or in some instances cancel the agreement as a whole and claim restitution, alternatively base your claim on delict on the grounds of fraudulent misrepresentation, where you can be compensated for the damages you have suffered.

To succeed on the basis of the warranty against latent defects, the Purchaser must show that at the date of acceptance of the offer, the Seller was aware of the existence of the alleged latent defect and concealed it from the Purchaser with the purpose of defrauding them.

Consumer Protection Act

With the advent of the Consumer Protection Act, Purchasers are now afforded the right to be fully informed of the condition of the property that they are purchasing.

This offers an implied warranty of quality to the Purchaser. A Seller will not be able to hide behind a voetstoots clause to avoid disclosing defects of which they are aware.

To avoid being held liable, a Seller will have to bring each and every defect in the property to the Purchaser’s attention by specifically mentioning it in the Sale Agreement, thereby ensuring that the Purchaser has full knowledge of the exact condition of the property.

Conclusion 

The mere inclusion of a voetstoots clause in an agreement of sale does not indemnify a Seller from being liability.

As mentioned above, the Purchaser will have to inspect the property thoroughly for all patent defect and identify them prior to the conclusion of the agreement, failing which he will have no recourse against the Seller for such defects, where a voetstoots clause is included. 

The Seller however has an obligation to point out and/or reveal to the Purchaser any latent defects of which he has knowledge, failing which he runs the risk of attracting litigation in that the Purchaser may institute action against him for the refund of part of the purchase price or even cancellation of the entire sale, depending on the nature or extent of the defect.

When purchasing a property it will always be in the Purchaser’s best interests to rather be safe and make use of a professional to inspect your prospective home, alternatively personally inspect the property thoroughly, and identify all the defects before signing a sale agreement, then rush through the sale, clouding your judgement by excitement, and then be sorry at a later stage.

An inspection of the property should include the structure, any outbuildings plans, as well as the grounds plans. All problems, whether they seem minor or major, need to be recorded in the sale agreement.

Note for reader

This article is of a general nature and is not to be utilised or quoted as legal advice. We do not accept any liability for any errors or omissions nor for possible loss or damage arising from reliance on the information contained in this article. Should you require further or more detailed information, kindly contact your legal advisor.

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