Introduction
In South Africa, many Agreements of Sale of Immovable Property still include a voetstoots clause. The term “voetstoots” originates from Roman-Dutch law,it means that a property is sold “as is” or “with all its faults”. This legal principle seeks to protect sellers from liability for defects in the property they sell. This protection is not absolute. The seller cannot invoke the voetstoots clause when he conceals a known defect from the purchaser.
Types of defects
Our law distinguishes between two types of defects: Patent and Latent.
Patent defects are easily discoverable by a reasonable inspection and would include things like a broken window, cracked walls and broken cupboards. The voetstoots clause protects the seller against such defects since the purchaser is reasonably expected to see them.
Latent defects, on the other hand, are hidden issues that are not easily discoverable by a reasonable inspection. Such defects would include a leaking roof, rising damp in the walls, and structural issues. The seller is legally obligated to disclose latent defects.
Mandatory Disclosure
The Property Practitioners Act 22 of 2019, which came into effect in February 2022, makes it mandatory for sellers to complete and sign a mandatory disclosure form that must be included in an Offer to Purchase, in terms of Section 67, which reads as follows:
“(1) A property practitioner must-
(a) not accept a mandate unless the seller or lessor of the property has provided him or her with a fully completed and signed mandatory disclosure in the prescribed form; and
(b) provide a copy of the completed mandatory disclosure form to a prospective purchaser or lessee who intends to make an offer for the purchase or lease of a property.”
Obligations of Purchasers
Before signing a sale agreement, a purchaser has a duty to perform a reasonable and thorough inspection to identify any patent defects. If a defect is discovered after the sale has been concluded, the onus is on the purchaser to prove that the seller was aware of the defect but deliberately or fraudulently concealed it during the sale negotiations. An example of fraudulent nondisclosure would be a seller painting over a damp wall so that the damage is not visible during a property inspection. The purchaser should carefully examine the mandatory disclosure form to ensure that all items are addressed. It is advisable to hire a professional home inspector before concluding the sale.
Recourse for purchasers
If a purchaser becomes aware of a defect after the sale, he should carefully document it and notify the seller. If the non-disclosed defect is material, the purchaser can claim damages or a reduction in the sale price. If the defect is severe enough to render the property uninhabitable or unsuitable for its purpose, the purchaser can cancel the sale. The purchaser must take legal action within 3 years of discovering the defect to avoid the claim being prescribed.
Conclusion
Prevention is always better than a cure. It is therefore advisable for purchasers to conduct a thorough inspection and, if necessary, engage a professional home inspector. Purchasers should, however, not be discouraged from taking legal action in an instance where the sale agreement contains a voetstoots clause and the seller failed to disclose a latent defect.
For further assistance, consult an attorney at SchoemanLaw.
Janet Mc Intosh | SchoemanLaw Inc
Attorney
