“Voetstoots" clause does not remove onus on owner to disclose defects

The “voetstoots” clause, meaning “with a shove of the foot” (that the buyer takes the property in its present condition as it is), has often been used by sellers as a disclaimer to protect themselves against any claims from the buyer if a fault is found after signing the offer to purchase.

This term, however, is not to be abused as known defects by law need to be disclosed to all parties involved, says Rene Barry, a partner at law firm Henkes Nolte-Joubert.

Whether patent or latent, if the seller knows about them, he cannot use the voetstoots clause to protect himself against repairing them or disclosing them to the buyer, and it is always recommended that buyers ask for a full condition report (as is prescribed by the Estate Agency Affairs Board) listing the condition of certain key items on the property in question.

If a full condition report is not available, the buyer could request that an inspection be carried out. While this would be at his expense, it would be worthwhile if there any questions that cannot be answered fully by the seller or his agent, says Barry.

While the Consumer Protection Act does not immediately affect property cases, as it is only applicable if the seller trades in property as his “ordinary course of business”, i.e. he is a property developer, there is still a responsibility of an “implied warranty of quality”.

Sellers should be aware that a buyer can cancel the deal with no repercussions if it is found that the property had a defect that was known at the time of the sale and not disclosed. If the seller conceals something he knows about with the aim of achieving a better price, the buyer is within his rights to cancel or sue him for damages from the resulting deception.

When a buyer signs an offer to purchase he acts in good faith that the seller will not deceive him and vice versa, it is with a mutual respect of honesty that a transaction should be entered into, says Barry.

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