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In most property sale agreements you will still find the “voetstoots” clause and parties must understand that the Consumer Protection Act (CPA) does not override this clause.
The CPA will normally apply in certain instances where the seller is a Developer or an investor whose ‘usual business’ is to fix up/build or renovate homes and sell them, but it does not apply when a homeowner is selling his home to another individual - because it is not the ‘usual business’ of that homeowner to sell real estate.
Many consumers are under the impression that the voetstoots clause is not applicable to property sales and may not be included in sale agreements.
Buyers seem to think that if any latent defects are found in the property after they have purchased it, the CPA will permit them to cancel the deal and have their money refunded, or claim damages from the seller or from the agent who facilitated the deal. This however is in correct.
Adding that, since an agreement of sale is a contract between the buyer and the seller, and the estate agent is usually only the facilitator of that agreement, A buyer cannot look to the agent for any damages if he later decides he is not pleased with his purchase.
A seller or an agent is still permitted to include a voetstoots clause in the sale agreement and this basically states that the purchaser is agreeing to purchase the property “as is” or “as it stands” on the date of the sale agreement, which includes all visible and non-visible defects and any conditions or servitudes contained in the title deeds.
However a buyer is quite entitled to refuse to accept this clause should they wish, but if he does accept it, he will not be able to cancel the sale agreement if any defects are later found - unless they can absolutely prove that these are latent defects and that they were deliberately hidden with the intention to defraud them.
Recently this again was confirmed in the Pietermaritzburg High Court case (Haviside versus Heydricks and Another) where the court found in favour of the seller, despite the fact that the purchaser only discovered certain defects after the transfer of the property had gone through.
The final judgement was that the “voetstoots” clause in the sale agreement meant that the purchaser had agreed to buy the property as it stood and that the seller could not be held liable for latent or patent defects,” he says.
Should the purchaser have wanted to escape the provisions of the “voetstoots” clause, they would have had to prove that that the seller intentionally withheld information from them, but in this case they had not done so.
Basically it can be said that the situation with regard to regular home sales is actually the same as it was before the CPA was introduced - and buyers should still inspect any home they are thinking of buying with great care, or even appoint a professional home inspector to help them if necessary.
It can also be said that home sellers should open and honest as possible about any defects that they might be aware of and ‘go the extra mile’ to show that they are not deliberately hiding any faults and are ready to negotiate transparently and in good faith.
Working with a professional agent who really understands that his or her job is not just about marketing your home and finding prospective buyers, but also about seeing the transaction through to the end when the property is successfully transferred to a new owner is the safest way to insure this.
A professional agent should go through your home in detail and properly assess how it compares to others on the market or recently sold in your direct area, and then assist you to set an accurate marketing price for the condition of your home.
Plus most reputable agents these days will ask you to sign a detailed sellers declaration or disclosure that can be combined in the sale agreements, and also signed by the buyer, so there can be no dispute later about what was and was not disclosed.