The Consumer Protection Act and the Voetstoots Clause
The Greyvensteins October Newsletter contained some important information writes David Barkes from Independent Property Consultants Jeffreys Bay.
Recently I had a buyer looking at a property which badly needed some extra TLC. I had advertised this fact on the IPC website and in the newspaper but the buyer was under the impression that the Consumer Protection Act would shield him from any unnecessary expenditure. I then sat him down explained what I had read in the Newsletter, and I quote verbatim as follows:
The misconception that the Voetstoots clause has been taken away by the Consumer Protection Act seems to be ever-present.
In most cases, the Consumer Protection Act will not apply to the relationship between a seller and purchaser where the seller does not sell in the ordinary course of his business.
Voetstoots, in short, means that something is sold as is. The clause will protect the seller against claims for damages from the buyer when any “faults” in the property are discovered after the signing of the Offer to Purchase.
A distinction must however be made between the two categories in which “faults” are divided because the Seller will, in some circumstances, not be protected by the Voetstoots clause.
Any flaws that can be seen with the naked eye on reasonable inspection are regarded as patent defects and the Seller cannot be held responsible for these. Examples may include: cracked tiles / windows / walls / boundary walls, scratched doors / door frames, visible damp, etc. It is important to note that a purchaser’s failure to view the outside the property due to weather or dogs will not be an excuse. It is the purchaser’s duty to inspect the property to their satisfaction. A second viewing should rather be requested when the weather is favourable or request the dogs to be put away.
The situation becomes more complex in the case of the second category, namely latent defects. These are the faults that the seller should have been aware of and deliberately concealed when in fact he should have drawn the purchasers attention to the flaw. This may include: a leaking roof, cracks in the wall or damp areas in the property which have been deliberately concealed.
Unfortunately the onus will be on the purchaser to prove that the seller was aware of the defect.
Voetstoots is quite a contentious issue and it is therefore of utmost importance to inspect a property thoroughly before signing an offer. If required, request the seller to confirm in writing if you are unsure about something. Examples of this would include that the pool pump / electric fence / air conditioner is in working order or that there are approved plans for the property.”
David Barkes