Скачать или смотреть "Voetstoots" - latent and patent defects explained...

A contract to buy or sell property would invariably include a “voetstoots” clause.

However, the “voetstoots” clause does not always protect a seller against defects in the property, so Buyers and Sellers must make sure they understand the meaning and implications of a “voetstoots” clause…

What is meant by the term “voetstoots”?

The clause means that the property is sold “as is” or “as it stands”. Accordingly the purchaser purchases the property with all the patent and latent defects.

Patent Defects are flaws that will be clearly visible on a normal inspection of a property. They include things such as wall and tile cracks, damaged gutters, broken windows, missing tiles etc. etc. It is a Buyer’s duty to acquaint himself with the general condition of a property on purchasing it and he cannot later claim he did not see such defects. The test is an objective one, namely what could have been seen on the original inspection of the property.

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 if there are water marks that make the leak obvious) and defects that have been concealed such as dampness behind a cabinet. The test is what could not normally be seen on inspection.

The basic purpose of the “voetstoots” clause is to protect the Seller from any action by the Buyer, if the buyer later discovers any defects he was not aware of when purchasing the property. At face value it discharges a Seller from liability for all patent and latent defects.

BUT…. the voetstoots clause does not protect a seller if he was aware of latent defects at the time of the sale and he intentionally failed to disclose such defects to the buyer, with the purpose of defrauding him.

In other words, a seller is protected against latent defects UNLESS the Purchaser can prove:

that the property had the defect at the time of the sale, and
that the seller knew of the defect, and
that the seller did not disclose the defect, and
that the seller deliberately concealed the defect as he knew that if it was not concealed and the purchaser saw it, the purchaser would either not have continued the purchase or he would have negotiated a more favourable purchase price.

Under certain circumstances silence on the part of the Sellers will be tantamount to fraud and this will assist a Purchaser in succeeding in a claim and deprive the Seller of his defence that the property was sold voetstoots. As was evident from previous court cases, it is evident that the Court will not come to the assistance of a “dishonest” Seller.

Clearly under certain circumstances silence on the part of the Sellers will be tantamount to fraud and this will assist a Purchaser in succeeding in a claim and deprive the Seller of his defence that the property was sold voetstoots. In light of the above it is evident that the Court will not come to the assistance of a “dishonest” Seller.

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