What is a voetstoots clause?
A voetstoots clause is a clause inserted into a sale agreement for immovable property. It provides that the purchaser buys the property from the seller as it stands (“as is”) and thereby indemnifies the seller against any claims for damages relating to any defects that are either visible or reasonably discoverable.
There are two types of defects commonly referred to, namely: 1. Patent Defects 2. Latent Defects
Patent defects are defects which are visible or apparent upon reasonable inspection of the property, such as broken windows, cracks in the walls, a leaking roof, or faulty plumbing.
Latent defects, on the other hand, are defects that are not visible upon reasonable inspection of the property, such as hidden structural damage, termite infestation or electrical issues.
The seller is generally not required to disclose patent defects to the buyer, as such defects are typically identifiable during the inspection process. However, this does not mean that the seller should misrepresent or fail to disclose any latent defects that they are aware of. The seller is legally obligated to disclose known latent defects to the buyer before the sale is finalised. Failure to disclose these latent defects could result in legal action against the seller.
To what extent may a seller rely on the voetstoots clause?
The aim of the voetstoots clause is to provide protection for sellers against liability for latent defects. However, the seller cannot rely on the voetstoots clause if they have deliberately concealed the latent defect and failed to disclose the defect to the buyer.
If the buyer discovers that the seller had knowledge of the latent defect, they may be entitled to claim damages or cancel the sale.
Due to the difficulty in proving that the seller had knowledge of the latent defects at the time of contracting, it is advisable for the seller to complete a property condition disclosure form which describes any known defects on the property. The seller should then make a declaration confirming that the items listed are in the condition they have stated.
In the case of Le Roux v Zietsman and Another (330/2022) [2023] ZASCA 102 (15 June 2023)
The respondents (Mr. and Mrs. Zietsman) claimed damages from the appellant (Mr. Le Roux) arising from patrimonial losses due to repairing the roof of the property bought from the appellant and loss of income, as the property could not be used as a guesthouse during repairs.
The respondents based their claims on the material allegation that the roof of the property had a latent defect, that the appellant was aware of the defect, and that the appellant had a duty to disclose the defect to the respondents.
The court found that the evidence provided by the respondents was sufficient to prove that the appellant had knowledge of the latent defect in the form of a leaking roof and had failed to disclose it to the buyers.
In Conclusion:
It is important for buyers to thoroughly inspect the property for patent defects before finalising a sale and to take proactive steps to protect themselves, such as obtaining a professional inspection report and understanding their rights under the Consumer Protection Act.
While the voetstoots clause offers some protection to sellers against liability for defects in the property, it does not protect sellers who deliberately conceal defects from the buyer.
By Ruan Botha and Thabang Ditshego
