"Voetstoots" Clause

“I recently bought my first home and after moving in I experienced major leakage through the roof. I contacted a contractor and he advised that there was a serious issue due to the inadequate pitch of the roof. The seller never disclosed to me that he has issues with the roof...”

"Voetstoots" Clause

IMPLIED WARRANTY AGAINST DEFECTS In terms of our Common law, there is an implied warranty against defects in an item.

However, the seller of the item is able to dispose of this warranty by stating that the item is sold “voetstoots,” or loosely translated, ‘as is’ no matter what the condition of the item.

Generally contracts for the sale of property will contain a “voetstoots” clause which allows a seller to be freed from the liability for both patent (obvious) and latent (hidden) defects of which a purchaser becomes aware after taking occupation of the property.

LATENT AND PATENT DEFECTS

A patent defect is normally a defect which one can clearly see on viewing a property.

This would include things like wall cracks, broken fittings, broken windows etc.

A latent defect on the other hand is not obvious and generally hidden from your view and not visible on a reasonable viewing of the property. Leaking pipes behind a wall, rising damp and structural issues are good examples of latent defects.

Let’s assume for the moment that your sale agreement does contain a voetstoots clause.

One must now consider whether you are bound to the voetstoots clause and or eligible for the protection afforded by the Consumer Protection Act (“CPA”).

THE CONSUMER PROTECTION ACT AND THE “VOETSTOOTS” CLAUSE The CPA (if applicable) allows for consumers to receive their bought goods free from defects, effectively nullifying any “voetstoots” clause.

However, this protection is only afforded where the seller is not a typical once-off private seller, but a developer, speculator, or investor with a property portfolio who falls under the definition of a ‘supplier’ (as defined by the CPA) and which acted in the ordinary course of his business when the property was sold to you.

In such a case you will have the protection of the CPA and the “voetstoots” clause will be nullified.

If however you bought the property from a private seller in a once-off transaction, the CPA will not apply and the “voestoots” clause will remain applicable.

One should however keep in mind that a “voetstoots” clause will not protect a seller where he failed to disclose a defect in bad faith or fraudulently. Equally, the purchaser has a reasonable duty to inspect the property and to satisfy himself as to the condition thereof.

DUTY TO DISCLOSE

For a purchaser to succeed with a claim in spite of a valid “voetstoots” clause, the purchaser must prove that the seller was aware of the latent defect at the time of the conclusion of a contract of sale and deliberately concealed the defect when he had a duty to disclose and failed to do so.