Understanding Voetstoots
Category Newsletter: Ceo's Message
Selling or purchasing a property is a significant transaction, fraught with potential legal complexities. A crucial aspect of property transactions revolves around the concept of "voetstoots", which refers to the sale of property "as is" or "with all its faults". Voetstoots plays a pivotal role in balancing the interests of both buyers and sellers, particularly when it comes to latent and patent defects.
The Voetstoots Clause: A Double-Edged Sword
The voetstoots clause is commonly included in property sale agreements to protect sellers from legal responsibility for certain defects present in the property at the time of sale. Essentially, this clause allows the seller to avoid liability for any latent (hidden) defects that may later become apparent after the sale is completed. In other words, the buyer assumes the risk of discovering defects after the transaction is finalised and bears the cost of any repairs.
However, this doesn't mean sellers can blatantly conceal defects or act fraudulently. If the seller is aware of a defect and deliberately fails to disclose it, they may still be held liable under certain circumstances.
Latent Defects: The Hidden Dangers
Latent defects are defects that are not readily apparent upon a reasonable inspection of the property. These defects may only become evident after the property has been purchased and the buyer has had a chance to live in or use the property. Common examples of latent defects include structural issues, faulty plumbing, or electrical problems that are not immediately noticeable.
In the context of voetstoots, the responsibility of uncovering latent defects rests primarily with the buyer. The buyer is therefore encouraged to conduct thorough due diligence, including property inspections and assessments, to minimize the risk of purchasing a property with significant undisclosed issues.
Patent Defects: The Clearly Visible
In contrast to latent defects, patent defects are defects that are easily noticeable upon reasonable inspection of the property. These defects are usually evident to anyone examining the property, such as a crack in a wall. A seller cannot escape liability for patent defects by relying solely on the voetstoots clause, especially if the defects were intentionally concealed or misrepresented.
Mitigating Risks: The Role of Full Disclosure
While the voetstoots clause can absolve sellers of responsibility for latent defects, it's important to note that South African law encourages transparency and honesty in property transactions. Sellers are obligated to make full and accurate disclosures regarding the condition of the property, even if a voetstoots clause is included in the agreement. This means that sellers should provide potential buyers with information about both latent and patent defects that they are aware of.
Failure to disclose material defects can result in legal consequences for the seller, including the potential for the buyer to cancel the sale agreement or claim damages.
Conclusion
The concept of voetstoots in property transactions offers a certain level of protection to sellers by allowing them to sell their property without taking responsibility for latent defects. However, this protection is not absolute, and sellers must still adhere to legal and ethical standards of transparency and disclosure. Buyers, on the other hand, should approach property transactions with due diligence, conducting thorough inspections and seeking professional advice to minimise the risk of purchasing a property with hidden defects.
In the dynamic world of property transactions, the balance between voetstoots and disclosure ensures that both buyers and sellers have a fair playing field, fostering trust and confidence in the real estate market.
Author: Brookes Attorneys
