'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. Kobus van Eck, CEO of Best Price Real Estate, provides useful insight into what the term
'voetstoots' entails:
Patent and latent defects
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.
Get a home inspection
It is advisable for
buyers to get a professional inspector such as Inspect-A-Home or 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 is 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.
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, KSE attorneys, to settle the
matter amicably with the seller.
ECKLAND PROPERTIES are Real Estate Agents in Cape Town, South Africa servicing properties throughout the Western Cape and more specifically the Northern Suburbs of Cape Town. Specialising in the rental and sale of residential property in "Goodwood, Parow" "Type: house, vacant land, apartment, flat, town house."
ECKLAND PROPERTIES are Real
Estate Agents in Cape Town, South Africa servicing properties throughout
the Western Cape and more specifically the Northern Suburbs of Cape Town.
Specialising in the rental and sale of residential property in "Goodwood,
Parow" "Type: house, vacant land, apartment, flat, town house."
Email us for more properties in other Towns!!!!!!!!!!!!
