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The Fineprint on Property Defects - The Voetstoots Clause

When dealing with an offer to purchase on a property, one is likely to come across what is known as the “Voetstoots clause”.

Its’ basic purpose is to shield the Seller from any subsequent action by the Purchaser, on the discovery of any defects he/she was not aware of at the time of signing the offer to purchase.

Voetstoots Clause - Your Conveyancing Attorneys in Cape Town

“What you see is what you get”

Even though some purchasers may not be aware of it, when you buy a property, there is an implied warranty that the property is sold free from any defects.

However possible for the seller to contract out of this implied warranty by inserting a clause into the sales agreement that provides for the sale to be voetstoots. This simply means that what you see is what you get, and that no warranties exist.

In other words, the purchaser agrees to buy the property as it appears at the time of the sale, and that there will be no claims against the seller for defects which are discovered later on.

Example of a typical voetstoots clause contained in a sale of immovable property:

“The property is sold voetstoots and the Seller shall not be liable for any defects, patent, latent or otherwise in the property. The Purchaser admits having inspected the property to his satisfaction and that no guarantees or warranties of any nature were made by the Seller or his agent regarding the condition or quality of the property or any of the improvements thereon or accessories thereof.

Types of Property Defects

The above clause protects the seller against two types of defects:

Patent Defects

Firstly, it deals with “patent” defects:

Defects that are clearly visible on a normal inspection of the property. They include wall cracks, sagging gutters, broken windows, missing tiles and the like.

Latent Defects

And “latent” defects:

Latent defects are defects that are not immediately obvious and are hidden from view.  For example, dampness behind a cabinet, faulty pool pumps and geysers, rusted internal pipes or a leaking roof.

Although the voetstoots clause protects the seller, all parties to the agreement should be aware of the exception to the rule.

In the case of Odendaal v Ferraris (422/07) [2008] ZASCA 85; [2008] 4 All SA 529 (SCA); 2009 (4) SA 313 (SCA) (4 September 2008), the Supreme Court of Appeal held that if a purchaser wanted to avoid the consequences of a voetstoots sale, the onus was on him or her to show that:

  • the seller knew of the latent defect at the time of the sale and did not disclose it; and
  • that the seller deliberately concealed it with the intention to defraud.

The court held that “a seller who recklessly tells a half truth or knows the facts but does not reveal them because he or she has not bothered to consider their significance, may amount to fraud”.

This reaffirms the duty of the Purchaser to acquaint himself with the general condition of a property with the completion of a thorough inspection, before the offer to purchase is signed.

Velile Tinto Cape – Your Conveyancing Attorneys in Cape Town

When you sign an offer to purchase you are essentially accepting the terms of the contract and the property in its’ current condition.

If all the parties are on the same page, disputes and delays can be avoided during the transfer process.
To protect yourself as the purchaser, it may be worth having a property inspection company inspect the property. Although the cost of the inspection will be for the purchasers account.

Contact our conveyancing attorneys in Cape Town, for expert legal advice and assistance with your property transfer and purchase.

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