on 12 Oct 22
Categories: Legal & Insurance
Voetstoots generally means that the property is sold as it is, with all its defects.
It is in essence an exemption clause and protects the seller by excluding liability on the seller’s part for defects in the property sold.
There is certain circumstances where the seller will not be protected by the Voetstoots clause and where the purchaser will be able to obtain relief in the form of either a reduction in the purchase price or, setting aside the contract.
The exception to the Voetstoots Clause involves latent (not visible or hidden) defects only. The test the court applies contain the following 3 points:
1)The the latent defect exist at the time the sale was concluded?
If it did exist at the time the sale was concluded, the purchaser bears the onus.
2)Is the defect material?
Did the defect affect the purpose for which the property is used?
Did the defect affect the price of the property?
If the purchaser is able to prove that the defect is material, then the purchaser will be able to have the contract set aside by court.
3)Did the seller know about the defect and fraudulently refrain to mention anything about it at the time of the sale?
The seller may claim that he/she was not aware subsidence was taking place on the wall. But if it can be proved that cracks were visible prior to a recent paint-over or re-plastering, he / she can still be responsible.
Prevention is better than cure:
The estate agent must encourage the seller to make a full disclosure of all known defects in the property. The agent on his / her turn is obliged to disclose this to each potential purchaser. Purchasers should ask more questions and any defects must be included in the Deed of Sale.