What Does "Voetstoots" Mean?
The term "voetstoots" is an Afrikaans word that translates roughly to "as is" or "as it stands." In the context of South African property law, a voetstoots clause in a sale agreement means that the property is sold in its existing condition, with all its faults, whether visible or hidden. The purchaser accepts the property as they find it, and the seller is generally not liable for any defects that may be discovered after the sale.
The voetstoots clause has a long history in South African law and remains a standard feature of most property sale agreements. However, its application is not absolute, and both buyers and sellers should understand its scope and limitations.
Seller Protection
The primary purpose of the voetstoots clause is to protect the seller from claims by the purchaser after the sale has been concluded. Without this clause, the seller would be liable for any defects in the property, whether known or unknown at the time of the sale. With the voetstoots clause in place, the seller is generally shielded from liability for defects that existed at the time of the sale, unless certain exceptions apply.
Latent vs Patent Defects
Understanding the distinction between latent and patent defects is essential to understanding the voetstoots clause:
Patent Defects
A patent defect is one that is visible or discoverable upon a reasonable inspection of the property. Examples include cracked walls, broken windows, damaged roof tiles, or visible damp. The purchaser is expected to inspect the property before the sale and is deemed to have accepted any patent defects that a reasonable inspection would have revealed. The voetstoots clause reinforces this principle.
Latent Defects
A latent defect is one that is hidden and not discoverable upon a reasonable inspection. Examples include underground water leaks, faulty electrical wiring concealed behind walls, structural defects hidden by plasterwork, or termite damage not visible to the naked eye. The voetstoots clause generally protects the seller from claims relating to latent defects, but this protection has important limitations.
Limitations of the Voetstoots Clause
The voetstoots clause does not provide absolute protection to the seller. There are critical exceptions:
Fraudulent Concealment
If the seller was aware of a latent defect at the time of the sale and deliberately concealed it from the purchaser, the voetstoots clause will not protect the seller. This is because fraud overrides any contractual protection. If the purchaser can prove that the seller knew about the defect and intentionally failed to disclose it, the purchaser may have a claim for damages or, in serious cases, may seek to have the sale set aside entirely.
The Consumer Protection Act
The Consumer Protection Act 68 of 2008 (CPA) has introduced significant changes for property transactions where the seller is a developer, estate agent, or other person selling property in the ordinary course of business. In such cases, the CPA may override the voetstoots clause and hold the seller liable for defects, including latent defects. However, the CPA does not apply to private sales between individuals who are not acting in the course of business.
Tips for Purchasers
- Conduct a thorough inspection: Before signing the sale agreement, inspect the property carefully. Consider appointing a professional building inspector to conduct a detailed assessment of the property's condition, including the structure, roof, plumbing, electrical systems, and drainage.
- Ask questions: Ask the seller directly about the condition of the property and any known defects. Put your questions in writing and keep a record of the seller's responses.
- Review the sale agreement: Ensure you understand the voetstoots clause and its implications before signing. If you are unsure, seek legal advice.
- Obtain compliance certificates: Ensure that the seller provides the required compliance certificates for electrical, gas, beetle (where applicable), and electric fence installations. These certificates can reveal defects that would otherwise remain hidden.
- Include a defect disclosure clause: Consider negotiating for a seller's disclosure form to be completed and annexed to the sale agreement. This requires the seller to declare any known defects in writing.
Tips for Sellers
- Disclose known defects: The safest approach is to disclose all known defects to the purchaser in writing before the sale is concluded. This protects the seller from claims of fraudulent concealment and promotes good faith in the transaction.
- Complete a property condition report: Provide a detailed property condition report that records the current state of the property, including any defects. This creates a written record that can be relied upon if disputes arise later.
- Obtain professional assessments: If you are aware of potential issues, consider obtaining professional assessments before listing the property. Addressing problems before the sale can prevent disputes and may improve the sale price.
- Ensure the voetstoots clause is properly drafted: Work with your conveyancer or attorney to ensure that the voetstoots clause in the sale agreement is comprehensive and properly drafted.
Key Takeaways
- Voetstoots means the property is sold as it stands, with all its faults, whether visible or hidden.
- Patent defects are discoverable on a reasonable inspection, and the purchaser is deemed to have accepted them.
- The clause generally shields the seller from claims for latent (hidden) defects, but the protection is not absolute.
- A seller who knew of a latent defect and deliberately concealed it loses the protection of the voetstoots clause.
- The Consumer Protection Act may override the clause where the seller is a developer, estate agent, or sells property in the ordinary course of business.
- Buyers should inspect thoroughly and obtain compliance certificates; sellers should disclose known defects in writing.
Conclusion
The voetstoots clause is a fundamental feature of property transactions in South Africa. While it provides important protection to sellers, it is not an absolute shield. Purchasers must exercise due diligence, and sellers must act in good faith. Understanding the scope and limitations of the voetstoots clause is essential for both parties to avoid costly disputes and ensure a smooth property transaction.
