Many of you have probably heard of the word “voetstoots” especially when it comes to the buying or selling of a property. For those of you who haven’t, the definition of the word is:
“(of a sale or purchase) without guarantee or warranty; at the buyer’s risk.”
In other words the property is sold “as is” and the Purchaser carries the risk of there being any “latent” defects (i.e. those “not visible or discoverable upon an inspection”). However the Seller is under an obligation to disclose any defect in the property of which he is aware to the Purchaser. This would be done in writing and is normally attached to the Deed of Sale as an annexure. The Seller would not be in a position to rely on the voetstoots clause in the following instances:
- The Seller was aware of the latent defect at the time of sale (for example the Seller had recently obtained a quotation to repair the roof which he knew was leaking during the rainy season); and
- The Seller did not disclose this defect to the Purchaser or his agent; and
- The Seller did not disclose the defect with the intention to defraud the Purchaser.
The onus will be on the Purchaser to prove that the Seller was aware of the defect and that the Seller intended to conceal the defect and by doing so intended to defraud the Purchaser. This is not an easy task so it would be wise for the Purchaser to thoroughly check the property before making an offer thereon.
It is advisable to make the offer through a reputable estate agency/agent and furthermore it would also be wise for the Purchaser to spend the money to instruct a home inspector to properly inspect the property and to provide him with a home inspection report before an offer is made.
It is also always advisable to have any offer to purchase properly checked by an attorney BEFORE signing it!
Brosens Cochrane Inc are specialist property attorneys located at Office Z9, Bagdad Centre, R40 Hazyview Road (also at Nelspruit). Tel: 087 230 8484; e-mail: firstname.lastname@example.org. We would be happy to assist with any property related query or question.