The Hidden Defects in Your Property — Understanding the voetstoets clause

2017-03-01 06:00

FROM a leaky roof to a well-hidden crack, there are a number of issues that you can run into after purchasing a pre-owned home.

You may feel cheated after defects in your “new” property start coming to light. Who is going to cover the expenses for the necessary repairs?

One of the most common clauses found in sale agreements is the voets­toets clause.

It’s used to sell property “as is”, ensuring that the seller is not held liable for defects of which the seller was genuinely unaware.

It does this by excluding the seller’s liability for latent defects in the property at the time of sale.

To understand the voetstoets clause, you must understand the difference between patent and latent defects. Patent defects are defects which a purchaser should become aware of after inspecting a property.

These defects are easily visible. In our law, a seller is not liable for these “obvious” defects, even without including a voetstoets clause in the sale agreement.

An example of a patent defect would be a broken window or a cracked floor tile.

Latent defects are hidden defects which would not be visible to a reasonable person, even after conducting an inspection of the property.

They may be concealed and only become evident well after the sale is concluded. Without a voetstoets clause, the seller would be liable for these “hidden” defects.

Latent defects need not be physical. Our courts have confirmed that the lack of approved building plans for alterations to a property constitutes a latent defect.

Depending on the circumstances, if the voetstoets clause applies, the purchaser/new owner may find themselves liable to cover the expense of having plans drawn and approved, with no recourse against the seller.

Fortunately, sellers have a duty to reveal latent defects that they are aware of. The voetstoets clause doesn’t protect a seller from dishonesty and fraud.

However, the purchaser would have to show the court that the seller concealed the defect with the intention to defraud. This can prove difficult in practice.

Since the Consumer Protection Act came into effect in 2011, many people have held the misapprehension that the voetstoets clause is no longer valid. This is simply not true.

While the voetstoets clause cannot be used in a sale by a developer, and other “suppliers” defined by the act, it is still perfectly valid in the vast majority of private sales.

Needless to say, purchasers should ask more questions before purchasing a property and ensure that they inspect the property carefully, in daylight — to find fairly obvious defects that they overlooked, for example, during an evening inspection where it was too dark to view the outside of the property and no one noticed that the boundary wall was falling down!

While it is beneficial to have a basic understanding of property law when buying or selling property, it is always a good idea to consult with an expert before concluding a sale agreement.

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