The Voetstoots Clause
Almost every agreement for the sale of immovable property will have a voetstoots clause. “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. It is therefore imperative that a purchaser inspects the property carefully before signing the agreement of sale.
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. 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 patent and latent defects, even if the seller had been aware of a defect and concealed it. This changed with the implementation of the Consumer Protection Act. The voetstoots clause is still a valid clause in an agreement of sale (unless the seller is in the business of selling properties), 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. A seller may also not be protected by a voetstoots clause if he/she was aware that a structure does not have building plans. The onus of proving this lies with the purchaser.
In the case of Ellis and Another v Cilliers N.O. and Others, the voetstoots clause did not protect the seller. The seller concealed a number of defects, but the main problem was that he 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 purchaser had 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.
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