The term "voetstoots", a Dutch word meaning "as is" or "with all faults," is a fundamental concept in South African property law. Commonly found in sale agreements, particularly in real estate transactions, this clause has significant implications for both buyers and sellers. While it can provide protection for sellers, it also places certain responsibilities on buyers to conduct due diligence. This blog explores what voetstoots is, its purpose, and its legal standing in South Africa.
What is voetstoots?
The voetstoots clause is a legal provision that allows sellers to sell property "as is", without being held liable for certain defects in the property, provided those defects were not deliberately concealed. It essentially transfers the risk of latent (hidden) defects to the buyer, absolving the seller of responsibility once the sale is complete.
In South Africa, voetstoots has its roots in common law and is a widely used clause in property transactions. However, the protection it offers sellers is not absolute and is subject to specific legal limitations.
Purpose of the voetstoots clause
The primary purpose of the voetstoots clause is to protect sellers from future liability for defects in the property that they were unaware of at the time of sale. By including this clause in a sale agreement, the seller effectively notifies the buyer that the property is being sold in its existing condition, and the buyer accepts the property on that basis.
From the seller's perspective, the clause:
- Limits liability: Sellers are not required to fix defects that they did not know about.
- Encourages transparency: Sellers are incentivised to disclose known defects upfront, as failure to do so could void the protection offered by the voetstoots clause.
For buyers, the clause serves as a reminder to:
- Conduct thorough inspections: Buyers must ensure they inspect the property for visible or hidden defects before finalising the purchase.
- Ask questions: Buyers should inquire about the condition of the property and request disclosure of any known issues.
Legal standing of voetstoots in South Africa
The legal standing of the voetstoots clause has evolved over the years, particularly in light of the Consumer Protection Act (CPA) of 2008. While the clause remains valid in many transactions, its application is subject to specific conditions:
1. Protection for sellers
Under common law, the voetstoots clause shields sellers from liability for defects unless:
- The seller knew about the defect and deliberately concealed it from the buyer.
- The seller made fraudulent misrepresentations about the condition of the property.
2. Limitations imposed by the CPA
The CPA has introduced new safeguards for buyers, limiting the enforceability of the voetstoots clause in certain situations:
- The CPA applies to transactions where the seller is acting in the ordinary course of business (e.g., a property developer or dealer). In such cases, sellers cannot rely on the voetstoots clause to avoid liability for defects.
- For private sales (where the seller is not a business entity), the voetstoots clause remains enforceable unless fraudulent concealment is proven.
3. Latent vs. patent defects
- Latent defects: These are hidden defects that are not immediately visible or discoverable during a reasonable inspection. The voetstoots clause protects the sellers from liability for latent defects unless they knew about and failed to disclose them.
- Patent defects: These are visible defects that can be easily identified during an inspection. Buyers cannot hold sellers accountable for patent defects as they are deemed to have accepted the property "as is".
Implications for buyers and sellers
For sellers:
- Full disclosure: Sellers are advised to disclose all known defects, even those that may seem minor, to avoid disputes.
- Protection against claims: If the voetstoots clause is included in the sale agreement and the seller has acted in good faith, they are generally protected from liability for undisclosed latent defects.
For buyers:
- Due diligence: Buyers should conduct a comprehensive inspection of the property or hire a professional to identify potential defects.
- Legal recourse: If the seller deliberately concealed a defect, buyers could take legal action to void the sale or claim compensation, even if a voetstoots clause is present.
Conclusion
The voetstoots clause remains a vital part of property transactions in South Africa, offering protection to sellers while reminding buyers to exercise due diligence. Although the clause provides sellers with significant protection, the limitations introduced by the Consumer Protection Act ensure fairness and accountability in property transactions. Both buyers and sellers must understand their rights and obligations when dealing with voetstoots to avoid potential legal disputes.
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Frequently Asked Questions
What is the voetstoots law in South Africa?
The voetstoots law allows sellers to sell property "as is", transferring the risk of latent defects to the buyer. However, this protection does not apply if the seller knew about the defects and failed to disclose them.
Do voetstoots still apply?
Yes, the voetstoots clause remains valid under South African law, particularly in private sales. However, its application is limited by the Consumer Protection Act in cases where the seller is acting in the ordinary course of business.
Can a house be sold with voetstoots?
Yes, a house can be sold with a voetstoots clause, which means the buyer accepts the property in its current condition, including any latent defects the seller was unaware of.
What is the voetstoots clause in law?
The voetstoots clause is a legal provision that protects sellers from liability for latent defects in the property, provided they did not deliberately conceal the defects or make fraudulent misrepresentations.