Buying a home from a developer feels different from buying one from a private seller, and in law it is different. The voetstoots clause — the standard term by which a buyer accepts property "as it stands", defects and all — still dominates private property sales in South Africa. But where the seller is a developer, builder or anyone else selling property in the ordinary course of business, the Consumer Protection Act 68 of 2008 steps in, and it changes the balance of power dramatically. Buyers who assume voetstoots always applies give up rights they actually have; sellers who assume it always protects them invite litigation they will struggle to win.
Voetstoots: A Brief Refresher
At common law, a seller is liable for latent defects in the property sold — defects that a reasonable inspection would not reveal, such as a leaking roof concealed by ceiling boards or failing foundations. A voetstoots clause shifts that risk to the buyer. Its protection is not absolute: as the Supreme Court of Appeal confirmed in Odendaal v Ferraris 2009 (4) SA 313 (SCA), a seller loses the protection of the clause where the buyer proves that the seller actually knew of the latent defect and deliberately concealed it with the intention to defraud. The courts have also treated the absence of statutory building approvals as a latent defect — in Haviside v Heydricks 2014 (1) SA 235 (KZP) unauthorised building work was dealt with on exactly that footing. Proving a seller's fraudulent concealment is, however, notoriously difficult, which is why the CPA's intervention matters so much where it applies.
When Does the CPA Apply to a Property Sale?
The CPA defines "goods" to include a legal interest in land or any other immovable property, so a sale of fixed property can be a consumer transaction. Whether it actually is depends mainly on who the seller is:
- Covered: sales by property developers, builders selling homes they have constructed, and businesses or investors that buy and sell property as a regular part of their commercial activity — in each case the property is supplied in the ordinary course of the seller's business.
- Not covered: the once-off private sale, where an ordinary homeowner sells to another private person. The CPA does not apply between them, and the voetstoots clause remains fully effective, subject to the common-law fraud exception.
- Also excluded: transactions where the buyer is a juristic person — a company, close corporation or trust — with an asset value or annual turnover at or above the threshold determined under the Act, currently R2 million.
The seller's estate agent does not change this analysis: an agent marketing a private seller's home does not convert the sale into a consumer transaction, although the agent's own services to their client are subject to the CPA.
Section 55: The Right to Quality Property
Where the CPA applies, section 55 gives the buyer the right to receive property that is reasonably suitable for the purposes for which it is generally intended, of good quality, in good working order and free of any defects, and that will be usable and durable for a reasonable period. A developer cannot contract out of these rights with a voetstoots clause — a blanket "as is" term is simply ineffective against them.
There is one important qualification. Under section 55(6), the right to receive defect-free goods does not apply where the consumer was expressly informed that the property was offered in a specific condition and expressly agreed to accept it on that basis. Full, specific disclosure — a named defect, described and accepted — therefore still protects the trade seller. What no longer works is the generic clause that says nothing and covers everything.
Section 56: The Implied Warranty and Its Remedies
Section 56 turns the section 55 standards into an implied warranty of quality that binds the producer, importer, distributor and retailer alike — in property terms, the developer or builder-seller. Within six months after delivery, if the property fails to meet the required standard, the buyer may return the goods, or in the property context require that the failure be remedied, and may elect between:
- repair of the defect;
- replacement; or
- a refund of the price paid.
The election belongs to the consumer, not the supplier. And if the supplier chooses to repair and the same failure recurs — or a further defect emerges — within three months of that repair, section 56(3) obliges the supplier to replace the goods or refund the consumer. For a buyer whose new townhouse reveals damp, cracking or plumbing failures within the first six months, these are powerful, self-executing remedies that do not depend on proving fraud.
New Homes: The NHBRC Layer
Buyers of newly built homes enjoy a second layer of statutory protection under the Housing Consumers Protection Measures Act 95 of 1998. Home builders must be registered with the National Home Builders Registration Council (NHBRC) and enrol new homes before construction. The scheme provides for defects and poor workmanship to be reported within three months of occupation, roof leaks attributable to workmanship, design or materials within twelve months, and major structural defects within five years. These warranties operate alongside — not instead of — the buyer's CPA rights against a developer.
Practical Guidance for Buyers from Developers
- Establish at the outset whether your seller is acting in the ordinary course of business — it determines which legal regime governs your defects claim.
- Do not be deterred by a voetstoots clause in a developer's standard contract; against a trade seller it does not override sections 55 and 56.
- Inspect thoroughly on occupation and diarise the statutory windows: six months under the CPA, and the three-month, one-year and five-year NHBRC periods for new builds.
- Report every defect in writing, immediately, to the developer and (for enrolled homes) the NHBRC, and keep photographs and expert reports.
- Scrutinise any "specific condition" disclosures before signing — what you expressly accept under section 55(6), you cannot later claim for.
Key Takeaways
- The CPA treats a legal interest in land as goods, so property sold in the ordinary course of business falls under the Act.
- Against developers, builders and trade sellers, a voetstoots clause cannot override the buyer's section 55 right to quality, defect-free property.
- Section 56 gives buyers a six-month implied warranty with the choice of repair, replacement or refund — and a further remedy if a repair fails within three months.
- Private once-off sales remain governed by the common law: voetstoots applies unless the seller fraudulently concealed a known latent defect.
- Specific, express disclosure of a defect under section 55(6) still protects a trade seller; generic "as is" wording does not.
- New homes carry additional NHBRC warranties: three months for workmanship, one year for roof leaks, five years for major structural defects.
Conclusion
The voetstoots clause is alive and well in private sales, but in the developer-to-consumer market the Consumer Protection Act has rewritten the rules in the buyer's favour. Which regime applies — and what remedies flow from it — turns on the identity of the seller, the nature of the transaction and the timing of the defect. If you have discovered defects in a property bought from a developer, or you are a seller or developer wanting your contracts and disclosures to withstand scrutiny, our property litigation team deals with these disputes daily. Contact us before small defects become expensive litigation.
