“Voetstoots” is defined as “without guarantee or warranty; at the buyer’s risk”. When a voetstoots clause is included in an agreement of sale, the seller is selling the property to the purchaser as it is with all its defects and at the purchaser’s risk.
However, the law distinguishes between latent defects and patent defects. Patent defects are defects which are visible and which are evident from an inspection by the purchaser. Beware the purchaser who does not inspect the property. Latent defects are material defects which are not visible and which diminish the use and enjoyment of the property.
Previously, a voetstoots clause in an agreement of sale would protect the seller against latent defects, even if he had been aware of the defect and deliberately concealed it. With the implementation of the Consumer Protection Act, the seller must beware. The voetstoots clause is still a valid clause in an agreement (unless the seller is in the business of selling porperties), but the seller will not be protected if he/she was aware of the defect and did not disclose it to the purchaser. The concealment must be deliberate and with the intention to defraud.
In the recent case of Ellis and Another v Cilliers N.O. and Others, the voetstoots clause did not protect the seller. Inter alia, the seller had levelled the floor with cement screed in order to disguise the fact that the foundation had subsided. The house is wooden, built into a slope and the front supported by wooden pillars. The onus was on the purchaser to prove that the defect was latent, that the seller was aware of the latent defect, did not disclose it and deliberately concealed it with the intention to defraud.
A seller may also not be protected by a voetstoots clause if he/she was aware that a structure does not have building plans.