Voetstoots describes in just one word the action of buying something ‘as is’. Ultimately a voetstoots clause frees the seller from liability for all patent and certain latent defects. Understanding the clause when selling or purchasing a property can help all parties ensure that the sales transaction runs smoothly. Linda Erasmus, CEO of Fine & Country, provides useful insight into voetstoots.
It is important for buyers and sellers to understand the difference between patent and latent defects. Patent defects are flaws that are clearly visible upon normal inspection of the property. These defects include for instance cracks, broken windows and missing tiles. Latent defects on the other hand are faults that are not immediately visible or obvious, such as faulty geysers, leaking roofs as well as defects that are concealed such as damp behind a cabinet.
The voetstoots clause liberates the seller from liability of patent defects; however exemption is not absolute for latent defects. The clause only protects sellers from latent defects that they were not aware of and did not attempt to hide from the buyer. If the seller was aware of the defect and concealed it from the buyer, then the seller is liable for the costs. In such an instance the seller may be called upon to refund part of the purchase price or even accept cancellation of the entire sale.
The burden of proving that the seller knew about the defects and deliberately concealed them is on the purchaser. Legally the seller is responsible for any known latent defects for up to three years after the sale.
It is advisable for buyers to get a professional inspector such as propInspectors SA to inspect the property for them before a sale is agreed. A home inspection is a visual examination of the outside and inside of a home at the end of which a formal report will be provided, describing the condition of the property in detail. The inspection will help to uncover defects pertaining to the foundations, plumbing, electrical systems, structural or cosmetic cracks, roof leaks, roof integrity, walls, rising damp and moisture. If a buyer purchases a home that has obvious defects which are not hidden, then the buyer has no claim against the seller.
All the information that estate agents share with potential buyers is normally received from the seller. Ultimately the estate agent is only obliged to inspect the property for patent defects, to enquire from the seller as to what known latent defects exist and then to disclose these to the buyer before conclusion of the sale. If the agent is in doubt about the condition of the property, it is good practice to get the seller to sign a defects list where everything that is not working or damaged, is stated as such. This document should be available for potential buyers to view.
Often a seller who is being challenged about undisclosed latent defects will claim that they did inform the agent of these prior to the sale, however the buyers recourse will rest against the seller alone.
By law buyers cannot do any of the following or they will be in breach of contract:
§ obtain a quotation and deduct the costs or repairs from the purchase price and tender a lesser amount;
§ refuse to pay occupational rent or any portion thereof unless the defective article seriously restricts occupation of the property;
§ cannot cancel the sale contract.
The proper recourse is to institute an action for damages and sue the seller. The buyer needs to prove the following in order to be successful in their claim:
§ the defects were latent;
§ the seller was aware of the defects at the time of sale;
§ the seller fraudulently concealed the existence of the defects or fraudulently misrepresented that there were no defects.
However the best way to resolve a problem is to ask the conveyancer doing the transfer, to settle the matter amicably with the seller.