• Myers Attorneys

The 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.

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 properly. 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 situation has changed. The voetstoots clause is still a valid clause in an agreement (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.

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