THE VOETSTOOTS CLAUSE AND HOW IT APPLIES WITH REGARDS TO THE CPA

Since the Consumer Protection Act was implemented in 2011, there have been many property buyers and sellers who have thought that the ‘voetstoots’ clause is no longer applicable, but this clause still very valid and it can be used where the seller’s ordinary course of business is not property (i.e. he is not a developer, investor or speculator), says Nelio Mendes, estate agency SAProperty.com’s marketing manager. 

“Voetstoots” means that the buyer takes the property as it stands, whether it has patent or latent defects, or not. Latent defects refer to defects which exist in hidden or dormant form, but are usually detectable if someone looks hard enough for them.  Patent defects refer to defects which are openly seen, discovered, or understood to be defects.

There are certain clauses that can be added to an offer to purchase which protects the seller and makes the buyer realise there are certain steps he can follow if he’d like in-depth information about the property in question. 

For instance, SAProperty.com’s sales agreement states that the property is sold as is, and all visible (patent) and invisible (latent) defects on the date of transfer do not affect the sale going through.  It also, however, gives the opportunity to the buyer to inspect the property thoroughly and the buyer could appoint a professional to inspect the premises, if he so wishes.  

Many offers to purchase now include a checklist whereby the seller states whether items within the home and included in the property sale are in good condition or not, and whether certain “extra” items are included in the sale.  Buyers should ask for this list, says Mendes, as this gives a very good idea of what would need replacing or repairing and whether there are high cost items on this list that could determine whether the buyer takes the property at the marketed price or not, says Mendes. 

Sellers, too, have a responsibility to disclose faults within their properties so that the agent can act with honesty when marketing their home. 

Whether the voetstoots clause is used or not, it is in the interests of both the buyer and the seller to have a thorough home inspection done before a sale agreement is entered into. The inspection should highlight any undisclosed defects and ensure that the buyer has complete peace of mind when purchasing the home and could circumvent any later problem or delay arising out of a defect coming to light, says Mendes.