Gaining a better understanding of this clause



Understanding what the 'voetstoots' clause actually means and how it affects you as a buyer or seller can go a long way to ensuring that the sale or purchase of your home is a pleasant experience. Deborah Abbott of Shepstone & Wylie Attorneys' property department, explains: 'Although, there is a general understanding that when one purchases a property 'voetstoots', one is purchasing it 'as it is', 'as it stands' or 'with all its faults', many disputes have arisen where one or both of the parties has failed to apply their minds to what it requires of them.' The 'voetstoots' clause, often included under 'warranties', usually states something like: 'The property is sold in its present condition, 'voetstoots' at the date of signature hereof, without liability on the part of the seller for any defects, patent or latent, in the property, or any damages suffered by the purchaser by reason of such defects.' Briefly, the effect of this clause, when there is nothing in addition, is that the seller does not take the risk of any defects (patent or latent), but IS liable for misrepresentations of any kind. A defect is patent if it is obvious and easily discernable, for example a broken window or sliding doors. A defect is latent if it is there at the time the buyer inspects the home, but not manifest, for example, a wall with cracks in it, which is covered by a cupboard. And, where a seller knows of a defect and deliberately conceals it, with intent to deceive the purchaser, he will not be protected by the 'voetstoots' clause. 'Furthermore, if the seller is aware of any circumstances which give him reasonable grounds to suspect that there may be a defect, he is obliged to disclose his knowledge of those circumstances to the purchaser.' For the buyer, notes Abbott, this boils down to a need to thoroughly inspect the property before signing the sale agreement. 'The time to raise questions and place conditions on the purchase is before the purchaser signs the sale agreement. This is the time to stipulate, for example, that the fitted carpets in the lounge will be replaced and the sliding doors fixed, as a written condition of sale; alternatively to negotiate a lower purchase price.' And, she says, it is essential that any conditions to rectify a defect be put in writing, in the sale agreement, as the 'voetstoots' clause is usually followed in the sale agreement by a clause such as the following: 'Neither party may rely on any representation which allegedly induced that party to enter into this agreement, unless the representation is recorded in this agreement.' As far as the seller is concerned, it is important to realise that a 'voetstoots' clause does not remove liability for misrepresentations and fraud. 'The best yardstick here is do to others as you would have them do unto you,' says Abbott If you, as the seller, are aware that the air-conditioning is not working, for example, disclose it to the buyer. If there are serious plumbing problems, or if the roof leaks - you are obliged to disclose it. However, after all is said and done, generally a seller sells his property 'as is' and, notwithstanding that you as the buyer have made yourself familiar with all its defects, the seller is not in any way obliged to rectify them unless that is a condition of the sale. 'In summary, the point of the whole exercise is for the buyer to be able to make an informed decision with all the facts before him, so that he decides to purchase the property 'warts and all' or not at all.' Article: Property24 News 04/04/2002 For the latest real estate news, visit www.property24.co.za