When a property is sold voetstoots it is sold as is or “as it now lies”. Therefore, the property needs to be maintained by the Seller in its current condition until occupation or date of registration.
WHO DOES THE VOETSTOOTS CLAUSE PROTECT?
The voetstoots clause is part of the agreement of sale for the protection of the Seller. It protects the Seller, in that the Seller is not responsible for any defects which are in the property whether these be latent or patent. The Purchaser buys the property in the condition in which it is found at the date of sale regardless of the condition of the property.
WHAT ARE PATENT AND LATENT DEFECTS?
A latent defect is one which is hidden and not easily seen. A patent defect is one which is obvious and easily seen such as a large and noticeable crack in the wall. Latent defects are leaking roofs, hidden damp, leaking pools and structural problems which can’t be seen with the naked eye.
THE SELLER’S RESPONSIBILITIES: THE DUTY TO DISCLOSE
The voetstoots clause will protect the Seller, but take note that this protection is limited. The Seller has a “duty to disclose” any defects which are latent, in other words any defects which are not obvious and cannot be seen with the naked eye. The Seller will not be protected if the Seller hides defects in the property on purpose. Sellers should take note that even a simple failure to tell the Purchaser about a defect, or telling a half-truth, will result in the voetsoots clause not protecting them. Advice for the Seller: fix as many of the defects as possible before selling the property. This will add value and will be an advantage as the property becomes more marketable.
THE PURCHASER’S RESPONSIBILITIES: THE DUTY TO INSPECT
Just as the Seller has responsibilities, the Purchaser also has responsibilities when buying a property. The Purchaser has the “duty to inspect”. If the Purchaser sees any defects and is not satisfied, he must add a condition into the offer to purchase that these problems need to be rectified by the Seller prior to registration. When the Seller accepts the offer to purchase with this condition, then the Seller has agreed to rectify the problems. If the Purchaser failed to inspect the property, the Purchaser will have to “live” with any defects.
Seller has the “duty to disclose” and the Purchaser has the “duty to inspect”. Failure on one or both parties’ responsibilities will have negative consequences, which can be avoided. It is best for both parties that truthful answers are given by the Seller about the latent and or patent defects. After consideration of the defects and inspection of the property, the defects need to be added to the offer to purchase.