In South Africa there is a standard Voetstoots clause which states that the buyer is buying the property “as it stands”, in other words with defects and all. This is unlike the United States and the United Kingdom, where home inspections are the standard before a sale is concluded.
Many disputes have arisen from the fact that buyers and sellers don’t necessarily understand what the Voetstoots clause actually means. Understanding how it affects you as a buyer or seller can go a long way to making sure the transaction runs smoothly.
If you purchase a house and there are obvious (patent) defects, which would have been revealed by a reasonable inspection of the property, then you, as the buyer, have no claim against the seller. This could be anything from visible cracks to broken windowpanes.
Where there is some defect in the house which is not apparent on a careful inspection, the seller is liable for those defects, if he or she knew about them. The Voetstoots clause in the agreement of sale will not take away the seller’s liability. In other words, the seller has a duty to reveal to the buyer any latent defects. In such an instance, the seller may be called upon to refund part of the purchase price or even accept cancellation of the entire sale, depending on the nature or extent of the defect.
As the buyer, it is in your best interests to have the property thoroughly inspected before signing the sale agreement. The house should be inspected inside and out – this includes the structure, any outbuildings as well as the grounds, and all problems, whether they seem minor or major, need to be recorded.
“A home is the largest investment most people will ever make – it makes sense to find out as much as you can about the house you are interested in before you buy,” “It’s a fact that houses are sold every day with a variety of undetected defects resulting in high costs of both repair and despair.”
Rather than relying on a questionable Voetstoots clause, it is in the interests of both the buyer and the seller to have a thorough home inspection done before a sale agreement is entered into. The inspection would highlight any undisclosed defects and ensure that the buyer has complete peace of mind when purchasing the home.
A home inspection is an objective visual examination of the physical structure and systems of a home, from the roof to the floor. The standard home inspector’s report will include an evaluation of the condition of the home’s boundary wall, garage, swimming pool, roof, gutters, flashings, roof cavity, ceilings, floors, walls, windows, doors, cupboards, fittings and finishes.
There has been talk that legislation is expected some time next year to make inspections mandatory and this will effectively do away with disputes brought about by the Voetstoots clause.