What is the legal implications to buy or sell a property “voetstoots”?
30 November 2020 | Lariska Burger
Let us start by explaining the meaning of the word “voetstoots”.
“Voetstoots” has its origins in South Africa’s Roman-Dutch law heritage and translates to: “to push a thing sold with one’s foot to indicate delivery and not come back with complaints later”. This means to sell or buy a property “as it stands” or in the condition in which the property is at the time of the sale.
The condition of the property refers to any defects that are discovered upon inspection or any defects that is not visible upon a diligent inspection.
The Common Law Position
In the common law there are two types of defects:
- A latent defect is a fault that would not readily be revealed by a reasonable inspection of the property being sold. Examples of such latent defects could be:
- Occasional flooding of the home in heavy storms due to ineffective storm water management
- A slow leak in the swimming pool which was not readily apparent.
- A patent defect is a flaw that is not hidden and ought to be easily identified upon reasonable inspection
If a property is sold “voetstoots” the only responsibility of the seller is to disclose any latent defects of which the seller is aware. Some sellers try to hide behind a “voetstoots” clause in cases where there are serious defects. They deliberately concealed it from the purchaser such as structural problems, damp, leaking roofs etc. But the law states that a “voetstoots” clause does not protect the seller against claims for latent defects that the seller knew about and deliberately concealed from the purchaser. Sellers are required by law to disclose any latent property defects they are aware of.
The New Position – The CPA
The Consumer Protection Act No 68 of 2008 (“the Act”) has a significant influence on the common law warranty against latent defects. The Act does not apply to a transaction where the buyer is a juristic person whose asset value or annual turnover at the time of the transaction equals or exceeds the threshold value of R2 million, as determined by the Minster of Trade and Industry from time to time.
The Act will also not be applicable where goods and services are not supplied in the ordinary course of business. For example if a home owner wants to sell his home and sells it once-off and not in the ordinary course of his business, the abovementioned common law principle will be applicable, therefore not all sale agreements will fall under this Act for protection for the buyer against defects.
When is a seller protected by the voetstoots clause?
Please note the below serves as some examples:
- All patent defects are covered by the voetstoots clause, even if the defect was not seen by the purchaser when he/she viewed the property because the building/room that is defective was locked at the time of the inspection. It is the responsibility of the purchaser to conduct a thorough inspection and to request access to all areas where such access is not available.
- Latent defects of which the seller was not aware of and did not try to conceal from the purchaser.
What is the obligations of the Seller and Purchaser when selling a property?
In conclusion, it is suggested that when a Seller wants to sell immovable property privately with the inclusion of the voetstoots clause, he/she has the duty to disclose all defects of the immovable property that he/she is aware of. A seller can further mitigate potential liability by attaching a condition report to the Deed of Sale. The condition report is a report whereby the seller is setting out the quality of the property as well as a list of all the defects, which he/she is aware of and the time of the sale of the property.
The purchaser has the obligation to inspect the property thoroughly as the condition report is not a warranty to the purchaser. The inspection should highlight any undisclosed defects to help circumvent any later problems or delay in the transfer arising out of a defect coming to light.
If buyers are in doubt to do their own inspection, they can appoint a home inspection company to assess the property.
It is very important for buyers and sellers to understand the concept of “voetstoots” before entering into any sale agreement.