Buying a home is one of the most significant investments most people will ever make. However, hidden defects in a property can turn this exciting journey into a daunting experience. This is where the voetstoots clause and property disclosures come into play.
What is the voetstoots clause?
The voetstoots clause is a traditional legal term used in South African property transactions. It essentially means “as is”, allowing sellers to sell their property in its current condition, defects and all.
While this may seem like it lets sellers off the hook entirely, South African law requires transparency and honesty in these dealings. Sellers are legally obligated to disclose all known defects in the property to potential buyers. If no defects are disclosed, it’s assumed that the property is in pristine condition.
“It’s important to remember that the seller’s obligation is limited to the defects they are aware of,” says Roger Lotz, franchisee at the Rawson Properties Helderberg Group. “This doesn’t guarantee that every issue with the property will be listed, which is why buyers need to do their due diligence.”
Latent vs. patent defects
Defects in a property are classified as either patent or latent:
Patent defects are visible and can be identified during a routine property viewing.
Examples include cracked walls, broken windows, damaged gutters and broken tiles. Buyers are expected to spot these themselves.
Latent defects, on the other hand, are not obvious to the naked eye. Examples include things like structural damage, invisible lumbing or electrical issues, flaws hidden by rugs or furniture, and seasonal leaks.
The voetstoots clause protects sellers from being held liable for latent defects unless the buyer can prove that the seller was aware of them and failed to disclose them. This, however, can be a complex process.
The burden of proof
If a latent defect is discovered after the sale, the buyer must prove that the seller knew about the issue but concealed it, which is often challenging. For instance, if damp was hidden by a fresh coat of paint, it may be easier to establish seller knowledge, but most cases are not so straightforward.
“Proving intent or awareness on the part of the seller can be very difficult,” Lotz explains. “Legal action is also expensive and time consuming. This is why we always recommend that buyers engage the services of a professional property inspector before signing on the dotted line.”
Why property inspections are essential
A property inspection is an invaluable step in the purchasing process. It identifies potential latent defects, saving buyers from unpleasant surprises later. While an inspection may seem like an added expense, it pales in comparison to the cost of dealing with unforeseen repairs. “An inspection report offers peace of mind and can even strengthen a buyer’s negotiating position,” Lotz advises. “It’s an investment in making an informed decision.”
The role of condition reports
To ensure transparency, condition reports have become a legal requirement in property transactions. These documents provide a snapshot of the property’s condition at the time of sale and include any defects that the seller is aware of. They serve to protect both the buyer and the seller by clearly outlining the property’s state.
“Again, keep in mind that these condition reports are not definitive,” says Lotz. “Sellers are obligated to provide full disclosure, but some are more observant than others when it comes to issues with their property.”
Partnering with Ethical Agents
Navigating the intricacies of property law and the voetstoots clause can be overwhelming. This is where partnering with an experienced and ethical estate agent can make all the difference.
“Our team at Rawson Properties Helderberg prides itself on guiding clients through every step of the process,” says Lotz. “We believe in transparency and ensuring all parties feel confident in their decisions.”
