Voetstoots in Real Estate: Know Your Rights in SA

Real estate clauses in South Africa

In the realm of South African property law, the Voetstoots clause is a significant and often misunderstood concept that plays a pivotal role in property transactions. This legal provision has the power to protect both buyers and sellers, but it also carries certain responsibilities and implications that must be fully comprehended by all parties involved. In this article, we will explore the Voetstoots clause, its implications, and how it affects property transactions in South Africa.

Decoding the Voetstoots Clause: Its Role in South African Property Sales

The Voetstoots clause, derived from Afrikaans, translates to “as is” in English. Essentially, it signifies that when a property is sold with this clause, it is being transferred in its present condition, with all its flaws and defects. In other words, the seller is absolved of any responsibility for undisclosed defects or issues that may arise after the sale.

This clause is primarily designed to protect sellers by limiting their liability regarding the condition of the property being sold. It allows them to sell the property without having to guarantee its fitness for a particular purpose or its freedom from defects. However, it is essential to understand that the Voetstoots clause does not provide sellers with a blanket shield against fraudulent misrepresentations or outright deceit.

Patent vs. Latent Defects: Key Differences Under the Voetstoots Clause

To better understand the implications of the Voetstoots clause, it’s crucial to differentiate between two types of defects: patent and latent.

Patent Defects: These are defects that are visible or easily discoverable upon a reasonable inspection of the property. If a property has patent defects, the buyer is assumed to have noticed or should have noticed them during the inspection process. The Voetstoots clause generally protects the seller from claims related to patent defects.

Latent Defects: Latent defects, on the other hand, are not readily apparent upon inspection and may not be discoverable even with a thorough examination. Sellers are legally obligated to disclose any latent defects they are aware of, even when the property is sold with a Voetstoots clause. Failing to disclose a latent defect is considered fraudulent and can have serious consequences.

The Risks of Undisclosed Latent Defects: Legal Implications in South African Property Law

Sellers must act in good faith and disclose any latent defects they know about, irrespective of the Voetstoots clause. Failure to do so can result in serious legal repercussions, like the landmark judgment in June 2023, Le Roux v Zietsman and Another (330/2022) [2023] ZASCA 102 (15 June 2023), proofed. This case highlighted the danger for property sellers who deliberately fail to tell buyers about hidden defects they are aware of.

If a buyer discovers a latent defect that was not disclosed, they may have grounds to cancel the sale or seek compensation for the cost of repairing the defect.

Moreover, in cases where a seller intentionally conceals a latent defect, it may be considered fraudulent misrepresentation, leading to even more severe consequences, including potential civil litigation.

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