Lynette Badenhorst

The voetstoots clause is included in the majority Sales Agreements for Immovable Property and is the clause which protects the Seller against liability for any latent defects to the property. A patent defect is a defect that is clearly visible on a normal inspection of the property.  It is a purchaser’s duty to acquaint himself with the general condition of the property when purchasing it, as the purchaser cannot later claim that he did not see such defects. A latent defect is a defect that cannot be seen or ascertained upon a normal inspection of the property. The Seller will only be liable if he was aware of the defects and did not reveal the defects to the Purchaser.

With the implementation of the Consumer Protection Act (“the CPA”), confusion arose on the extent of the application of the CPA on Sellers and the Estate Agents.

The application of the CPA on the Seller has been discussed by numerous institutions and is it clear that the CPA only applies where the Seller is selling the property within the course of his business. Therefore, where the Seller sells a property and it is not in the course of his business, the transaction is excluded from the operation of the CPA the voetstoots clause will therefore still be applicable.

What about an Estate Agent?

An Estate Agent acts according to the mandate provided by the Seller, instructing the Estate Agent to sell the property on behalf of the Seller. The client of the Estate Agent is the party who provides him with the mandate. The Estate Agent therefore has an obligation to convey facts concerning the property that are, or should reasonably be, within the knowledge of the Estate Agent.

Will the Estate Agent consequently be able to rely on the application of the Voetstoots Clause?

When an Estate Agent sells a property on behalf of the Seller, he acts within the course of his business and therefore the CPA is applicable. The CPA is applicable on the mandate agreement between the Seller and the Estate Agent, and the marketing service the Estate Agent provides to the Purchaser, which must be in line with the Estate Agent’s code of conduct. The Estate Agent will therefore not be able to rely on the voetstoots clause to avoid liability, as he is acting within the course of his business.

The CPA makes provision for an implied warranty of quality and therefore, if the Estate Agent was aware of any patent or latent defect on the property, and did not disclose this to the Purchaser, the Estate Agent can be held liable for any loss due to this omission.

How can an Estate Agent and Seller avoid confusion on whether they had knowledge of the defects and if they had the knowledge, proof that it was disclosed to the Purchaser at the date of sale?

The best solution for the Seller and Estate Agent is the property condition report. The property condition report is initially completed and signed by the Seller and then provided to the Purchaser for signature. This must be done on date of sale to make sure all parties agree on the presence of any defects to the property and the parties’ knowledge thereof.

In conclusion: Although most of the Sale Agreements contain a clause affirming that the Purchaser acknowledges that he has inspected the property and accepts it together with its fixtures and fittings in the condition as is on conclusion of the agreement, the property condition report safeguards the Seller and Estate Agent against claims by a Purchaser for defects of which the Seller and Estate Agent did not have knowledge of. It is therefore a fundamental part of the Agreement of Sale of Immovable Property and must be treated as such by the Seller and Estate Agent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.