Voetstoots Clause & Property Defects

Generally agreements of sale of immovable property contain a 'voetstoots' clause absolving the Property Seller from any liability for patent and/or latent defects, which the Buyer may find after taking transfer and occupation of the property. 

The meaning of the 'Voetstoots' clause

'Voetstoots' is an Roman Dutch Law term and literally means 'as is' which states that the buyer is buying the property "as it stands", in other words with defects and all (and all). 

The voetstoots clause is especially important in the sale of second-hand property where defects in the building are not apparent.

Patent Defects

Patent Defect: Definition

A defect that is, or should reasonably be, easily identifiable upon inspection of the goods or property.

Patent defects are defects which the normal person should be able to see upon an inspection of the thing being sold. 

If the purchaser did not inspect the thing sold prior to the contract he or she is entitled upon receipt of the thing, to examine and test the goods before legally accepting delivery. 

Patent defects are flaws that will be clearly visible during an ordinary inspection of a property. They include defects such as wall cracks, sagging gutters, broken windows and cracked glass, broken tiles etc. 

It is the buyer’s duty to inspect the general condition of a property when purchasing it and the buyer cannot later claim he or she did not notice such defects. 

The test is an objective one, namely what could have been seen on the original inspection of the property.

Latent Defects

Latent Defect: Definition

A Latent Defect in an article sold that is not apparent after ordinary inspection by a ‘reasonable person’.

Latent defects are defects which only an expert could discover or defects which cannot be discovered by an ordinary person during a reasonably thorough inspection.

E.g. Damp in a house or where a motor vehicle having been in a major car accident. 

Other examples of latent defects are: faults that are not immediately obvious and are hidden from view. These include faulty pool pumps and geysers, rusted internal pipes, leaking roofs (except where stain marks make the leak obvious) and defects that have been concealed such as dampness behind a cabinet. 

The objective test is what could not normally be seen on inspection.

Liability of the Seller

Where there is a definite defect in the house which is not apparent on a careful inspection, the seller is liable for such defects if he or she knew about them. The voetstoots clause in the agreement of sale will not take away the seller’s liability in this case. 

The seller has a legal obligation to reveal to the buyer any latent defects he or she is aware of. 

In such cases, the seller may be asked to refund part of the purchase price, make good at his or her cost, or even to accept cancellation of the entire sale, depending on the nature or seriousness of the defect.

Van Deventer & Van Deventer Incorporated - property law attorneys

Consult a legal expert before signing an agreement of sale.


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