What does it mean to buy or sell a property “voetstoots”?
Category Legal Topic
“Voetstoots” has its origins in South Africa’s Roman-Dutch law heritage and translates to: "to push a thing sold with one’s foot to indicate delivery and not come back with complaints later". This means to sell or buy a property “as it stands” or “with all its faults”, which has the effect of excluding an implied warranty in respect of the quality or condition of the property being sold.
Selling or buying a property voetstoots means that the property sells in the condition in which it is at the time of sale. The condition of the property refers to any defects to the property, whether the nature of the defect is latent or patent. The latter entails defects that are discoverable upon a cursory inspection, whereas the former refers to defects that are not apparently visible upon a reasonable, diligent inspection.
When it comes to patent defects, the parties agree on a price for the propert, taking into account these defects, prior to concluding the agreement. The voetstoots clause absolves the seller from any liability for patent defects once an agreement has been concluded. It is the responsibility of the purchaser to identify any patent defects to the property being purchased and failing to do so will, in terms of a voetstoots clause, leave the purchaser without any right of recourse against the seller.
Latent defects, however, are far more contentious. Latent defects are also covered by the voetstoots clause in a sale agreement, often leaving purchasers feeling aggrieved when they have purchased a property only to discover later that the property was bought with defects which need to be repaired at substantial expense. Although the voetstoots clause in a sale agreement absolves the seller from liability for latent defects, this absolution is not unlimited and does not free the seller of liability for latent defects which were fraudulently concealed by him/her. It will however be the duty of the purchaser to prove that such fraudulent concealment was committed by the seller, by proving:
That the seller knew of latent defects and didn’t disclose it; and
That the seller deliberately concealed it with the intention to defraud.
If a seller is aware of latent defects, the seller has a positive duty to mention the defect(s) only if he/she considers the defect to be significant enough that he/she ought to mention it to purchaser. Significance in this regard should be viewed in light of whether the defect affects the owner’s ability use the property in the manner, and for the purpose, for which it was intended. On this basis, a purchaser failed in a claim for compensation against a seller, where a garage was not built according to municipal regulations, a fact which both parties were unaware of until after transfer of the property had taken place and which the purchaser only discovered when soliciting the services of a contractor to build a structure on top of the garage building. The court's view was that although the garage was not built to an approved plan, it cannot be said that the garage is not fit for the purpose for which it was intended, which is to house a car, supported by the fact that the garage is still standing 15 years after it had been built.
False statements made to a purchaser in relation to the condition of a property by an estate agent in the execution of a mandate are binding on the seller. However, the courts have held that these statements “founder in the face of the voetstoots clause” if these misrepresentations were innocently made, because innocent misrepresentations by an estate agent does not establish fraud on the part of the seller.
When is a seller protected by the voetstoots clause?
Please note: this list is not exhaustive, but merely serves to provide some examples.
All patent defects are covered by the voetstoots clause, even if the defect was not seen by the purchaser when he/she viewed the property because the building/room that is defective was locked at the time of the inspection. It is the responsibility of the purchaser to conduct a thorough, cursory inspection and to request access to all areas where such access is not available.
Latent defects of which the seller was not aware or did not try to conceal from the purchaser.
In practice, courts have held that a purchaser may assume that a property is built according to plan and municipal regulations. However, the courts have interpreted defects covered by the voetstoots clause to not only include physical defects, but also ancillary characteristics like absence of statutory authorisations. Therefore, purchaser will have to prove that the seller was aware of these defects in order to hold the seller liable.
What should purchasers do before entering into a contract of sale?
It is incumbent upon the purchaser to perform a cursory inspection and ask the seller about any latent defects of which he/she may be aware.
*NB: This article is published for general public information only and not intended as legal advice. Please consult your legal representative for professional advice whenever a dispute arises.
Author: RE/MAX FRONTIER