Over the past few years we have come to realise that many buyers and sellers have a very vague idea of how the Voetstoots Clause actually works. In many cases, disputes arise when either, or both, parties don’t understand how it affects the buyers and sellers.
Below we’ll go through the basics of what the Voetstoots Clause means and how to make sure the transaction of property from seller to buyer goes smoothly.
What is the Voetstoots Clause?
In South Africa there is a standard clause inserted into the sale agreement which says that the buyer is buying the property “as it stands”, with defects and all. This clause is known as the Voetstoots Clause.
For the Voetstoots Clause not to apply, the buyer has to prove that the seller knew of the latent defects and deliberately concealed them with the intention to defraud the buyer.
Common Voetstoots Issues:
In many cases, the seller will have lived with the defect for so long that they are no longer aware of it. In which case it wouldn’t be possible to accuse them of hiding it from the buyer. However, it is very common that the defects come to light in the period between the sale document being signed and the transfer of the property.
How to Solve These Issues:
While non-disclosure of a latent defect is a serious matter, we have found that most sellers are open to reworking the sale agreement simply because they forgot about the defect.
In cases where there is obvious non-disclosure of a latent defect, it is tempting to enter into litigation to reach an agreement. However, at Gunston Strandvik Mlambo, we believe that a good lawyer can help resolve the matter without the need for a costly and time-consuming litigation process.
Whether you’re selling or buying a home, we strongly recommend that both the buyer and the seller do a thorough home inspection before the sale agreement is entered into. This will ensure that all defects are disclosed and that the buyer has peace of mind when buying the property.