THE VOETSTOOTS CLAUSE = “As is” / “As it stands”
To protect the SELLER from any action by the Buyer, on discovering any defects he was not aware of when purchasing the property, from doing anything to jeopardize the actual sale contract.
TYPES OF DEFECTS:
PATENT: A defect that is, or should reasonably be, easily identifiable upon inspection of the property.
To protect the SELLER from any action by the Buyer, on discovering any defects he was not aware of when purchasing the property, from doing anything to jeopardize the actual sale contract.
TYPES OF DEFECTS:
PATENT: A defect that is, or should reasonably be, easily identifiable upon inspection of the property.
Patent defects are described as flaws that will be clearly visible on a normal inspection of a property. They include wall cracks, sagging gutters, broken windows, missing tiles, 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: A defect that is not apparent after ordinary inspection by a 'reasonable man'.
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, for example, rising damp in a house, faulty pool pumps and geysers, rusted internal pipes, leaking roofs (except where strain marks 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.
Important: Defects can be TANGIBLE (E.g. crack in wall, hole in the roof) or INTANGIBLE (E.g. bad tenant or soon to be raised special levy)
The Seller’s Responsibility
In terms of numerous South African court cases a Seller is only excused from liability for latent defects where he himself was not aware of the problem at the time of the sale. If a Seller knowingly conceals a latent defect he will be liable to the Buyer for the cost of its repair.
A Seller will thus be liable for all cracks or dampness and other similar faults deliberately hidden from view. He is also responsible for latent defects which he is presumed to have been aware of, such as any appliance, which is not functioning properly. Examples are geysers delivering only lukewarm water, defective electrical points, etc\
.
The Buyer’s Recourse
It is very important for a Buyer to know what his rights are in such cases. By law he cannot do any of the following:
It is very important for a Buyer to know what his rights are in such cases. By law he cannot do any of the following:
- He cannot obtain a quotation and deduct the cost of repairs from the purchase price and tender a lesser amount (or reduce his deposit);
- He cannot refuse to pay occupational rental or any portion thereof unless the defective article seriously restricts occupation of the property;
- He cannot repudiate or cancel the sale contract.
It is he, and not the Seller, who will be in breach of contract if he takes any of these actions. By law his proper recourse is to institute an action for damages and sue the Seller. This will obviously not appeal to the Buyer and the best way to resolve the problem is to ask the Conveyancer doing the transfer to settle the matter amicably with the Seller. Ideally he should arrange a refund of the costs of repair to the Buyer on registration of transfer. It is in the best interests of both parties to agree to this.
Late Discovery of Defects
There are two issues here. Firstly the discovery of defects that only appear later. For example, a Buyer may only experience a major roof leak when the first summer rains appear long after registration. If it can be shown that the Seller knew or must have known about the leak and consciously failed to disclose it, the Buyer can sue him for his repair costs.
There are two issues here. Firstly the discovery of defects that only appear later. For example, a Buyer may only experience a major roof leak when the first summer rains appear long after registration. If it can be shown that the Seller knew or must have known about the leak and consciously failed to disclose it, the Buyer can sue him for his repair costs.
The second issue concerns a delayed discovery of defects by the Buyer. For example he may only first complain about a wall crack six months after taking occupation. It will be very hard to prove that the Seller knew about a defect which the Buyer himself took so long to discover or that the defect existed at the time of the sale. In such cases the Buyer will have no recourse against the Seller.
The Estate Agent’s Responsibility
An Estate Agent is only obliged to inspect the property for obvious patent defects, to inquire from a Seller as to what known latent defects exist and to then disclose them before signature to the Buyer. Once having done this the Buyer’s recourse is against the Seller alone. A Buyer’s recourse will inevitably rest against the Seller alone and not the Estate Agent.
An Estate Agent is only obliged to inspect the property for obvious patent defects, to inquire from a Seller as to what known latent defects exist and to then disclose them before signature to the Buyer. Once having done this the Buyer’s recourse is against the Seller alone. A Buyer’s recourse will inevitably rest against the Seller alone and not the Estate Agent.
“Prevention is better than cure”
When taking the mandate, the Estate Agent should advise the Seller to disclose ALL defects, and disclose same in the Offer To Purchase.
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