THE VOETSTOOTS CLAUSE EXPLAINED

The voetstoots clause is a legal term mostly encountered when buying or selling property. But what does this term really mean and how does it affect sellers and purchasers in a property transaction?

The term loosely translates to “as is”. The voetstoots clause is typically included in a sale agreement to indicate that the purchaser accepts the property in its existing condition at the time the agreement is concluded (i.e., 'as is').

To understand the clause, a distinction must be made between latent and patent defects.

Patent defects are visible defects that a purchaser can easily identify through a reasonable inspection like broken tiles or windows, damaged doors or cracks in the wall.

Latent defects are hidden defects not easily detectable during a normal inspection and may only become apparent over time, like roof leaks or defective plumbing inside the walls or underground.

In Odendaal v Ferraris, 2009 the court held that the whole purpose of a voetstoots clause, is to exempt the seller from liability for defects of which he or she is not aware.

The voetstoots clause usually protects the seller from liability for defects in the property. However, this protection is limited. In Le Roux v Zietsman, 2021 the court held that the operation of the voetstoots clause is confined to cover the latent defects which the seller did not deliberately conceal, and the court further held that the voetstoots clause in a sale agreement will not relieve the seller from liability for misrepresentation.

Therefore, should the parties be in dispute regarding a defect, the seller will be deprived of protection afforded by the voetstoots clause if the purchaser can prove that the seller was aware of the defect at the time of concluding the sale agreement, deliberately concealed the defect, and failed to disclose the defect to conclude the sale agreement.

Modern conveyancing practices promote transparency and therefore a mandatory disclosure form was introduced in the Property Practitioners Act 22 of 2019, whereby sellers are compelled to complete and sign the mandatory disclosure form regarding information of the property, including a list of known defects, a copy hereof must be provided to the purchaser with the agreement of sale which mandatory disclosure form forms part of the sale agreement.

The voetstoots clause remains a significant part of property transfers. It is therefore very important for sellers to understand their rights and obligations under this clause. It is recommended that sellers disclose all known defects and to ensure that all such disclosures are documented in writing. Similarly, purchasers should carry out a thorough inspection of the property and, if uncertain about any defects, request detailed information about potential defects in writing.

Written by Nicole van Jaarsveld

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This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys & Conveyancers at info@hjwattorneys.co.za directly for advice applicable to your specific matter.