When you can no longer buy voetstoots goods in transactions that fall under the Consumer Protection Act, consumers wonder if you can really buy voetstoots property?
Consumers then find it confusing to hear about voetstoots clause, which is a common term in property transactions. Even sellers sometimes encounter when the new owner sues them for defects discovered after the transaction is completed.
The answer lies in the difference between latent defects and patent defects, according to Fatima Gattoo, director at Cliffe Dekker Hofmeyr and Fatima Essa, associate at the firm.
READ ALSO: No, nothing sells voetstoots or ‘the like’
What is a patent defect?
He said in simple terminology, you can see patent defects with the naked eye. When you buy property, you will be able to see several houses before you find your dream home. Maybe some have cracked walls or broken windows.
“This type of defect is defined as a patent defect because you can clearly see it under reasonable examination. TheLaw.com legal dictionary and Black’s Law Dictionary describes patent defects as “obvious defects that can be seen on the surface with casual inspection”.
Patent defects include wall cracks, sagging gutters, broken windows and missing tiles. Details of these defects that can be seen and who will be responsible for paying for repairs must be included in the offer to purchase in the property transaction.
Gattoo and Essa also argued that if the defect was noted, it would create strong evidence for the seller to argue that the buyer was aware of the defect and therefore, not entitled to compensation based on the fact that it was concealed. .
READ ALSO: Buying a house? Here’s how to get the most from your purchase
What is a latent defect?
Latent defects, on the other hand, are those that only an expert can identify. It will not be visible to people who inspect the property enough. Latent defects can include rising damp, broken pool pumps or geysers, corroded internal pipes and leaking roofs.
Most sellers are aware of the problems caused by latent defects in property transactions and therefore include a clause called “voetstoots clause” in the offer to buy / sale agreement.
“Voestoots”, described in Collins Dictionary as “denotes a sale in which the vendor is released from all responsibility for the condition of the goods sold”.
The word translated literally means “like that”.
The voetstoots clause protects the seller against all defects in the property, including all latent defects of which the seller is unaware. If the seller knows about the latent defect and deliberately hides it from the buyer, the buyer will have the right of recourse against the seller, Gattoo and Essa said.
They also show that this principle is confirmed in a recent case where the court said that the seller is deprived of the protection of the voetstoots clause in situations where the seller perpetrated fraudulent non-disclosure.
In plain English this means that the seller cannot call on the protection of the voetstoots clause if he hides defects in the house on purpose to make you buy the house without seeing it.
If the buyer identifies a defect after the sale of the property is completed, the buyer must prove that the seller was aware of the defect and fraudulently or deliberately concealed it when concluding the transaction.
READ ALSO: Buying a home: Here’s how to invest… with a partner
What the court will consider in the transaction property voetstoots
Gattoo and Essa said that the court will consider objective factors to decide if the seller intentionally concealed the defect and if it is found that the seller acted fraudulently, the seller may be required to refund part of the purchase price or correct the defect. question.
“However, the fact is that it is quite difficult for the buyer to prove that the seller knew about the defect and deliberately concealed it from the buyer. Therefore, when the property is sold, the seller has an obligation to disclose to the buyer any latent defect in the property when completing and giving sign an offer to buy or sell agreement.
He said this is an important step for sellers to avoid liability for unknown defects at a later stage.
The court also recently confirmed the seller’s duty to disclose in cases where the property will be used as a home. It is important that the structure is well maintained in order to do business.
“The fact that there is a major leakage problem in the roof is material and the seller has an obligation to inform the buyer. Considering the situation when the seller failed to tell the truth about the leak and the defect of the roof, the court decided that the seller withheld the information to secure the sale for his own benefit.
However, they indicate that it should be noted that the buyer also has the obligation to check thoroughly before the purchase and will, therefore, not be able to claim that he was not aware of the patent defect.
He also warns that before you jump through all the negotiations about the purchase price, buy an existing property and then qualify financially, it is important for prospective buyers to carefully inspect the property before making an offer, especially when buying in a complex. .
“Talk to other residents and neighbors in the complex who may be aware of drainage or water problems. This inspection should include moving large items to ensure that the obstructed area is free of defects. Large cupboards, for example, should be moved because it can hide cracks or moisture.
READ ALSO: Buying your first home? Here are 4 important insurance tips to keep in mind
Protection from the new Property Practitioners Act
The Property Practitioners Act enacted last year also requires parties to sign a full and complete List of Defects that forms part of the offer for a purchase or sale agreement.
This document is then provided to the buyer to ensure full transparency between seller and buyer regarding the condition of the property. Gattoo and Essa say that you can also use the services of a home inspector or an expert to carry out an assessment of the property, to ensure that there are no defects in the property and to ensure that the plans for the property are updated. so what is seen in the property is also seen in the plans.
They said it is important for the buyer to note that the existence of legal permission, such as approval of the building or change plans, is also considered a latent defect which is also guaranteed by voetstoots provision.