First-Time Buyer Alert: What "Voetstoots" Really Means

You have found the perfect home. The location is ideal, the finishes are what you were looking for, and you already see yourself settling in.

You sign the offer to purchase, the property is registered in your name, and then, a few months later, undisclosed defects come to light. The first heavy rain reveals a leaking roof or signs of hidden damp.

When these concerns are raised with the seller, their response is: “The property was sold voetstoots.”

What Does "Voetstoots" Mean?

"Voetstoots" is an old Roman Dutch legal term that means "as is" or “with all its faults.”

In property law terms, it means that the buyer buys the property in its existing condition at the time of sale, including any defects that may exist.

The Voetstoots clause does not protect a seller who knowingly:

• Commits fraud;

• Makes a misrepresentation; and

• Deliberately hides a latent defect.

The voetstoots clause limits a buyer's ability to claim against a seller unless it can be proven that the seller knew about a latent defect and deliberately concealed it or failed to disclose it. Proving this can be difficult and expensive.

It is also important to note that, in certain circumstances, particularly where the seller is acting in the ordinary course of business, the Consumer Protection Act may limit the effectiveness of the voetstoots clause and provide additional protection to buyers.

Whether a buyer has a claim often depends on whether the defect is classified as a patent defect or a latent defect. Understanding this distinction is therefore essential.

Understanding the Difference Between Patent and Latent Defects

Patent Defects

Patent defects are defects that are visible and reasonably noticeable during an inspection of the property.

Examples include:

• Broken windows;

• Damp patches;

• Peeling paint; and

• Signs of wear and tear.

Generally, a buyer cannot later complain about defects that were visible and could have been identified when viewing the property.

Latent Defects

Latent defects are hidden defects that are not easily discoverable during an ordinary inspection.

Examples may include:

• Leaking plumbing hidden behind walls;

• Roof leaks concealed by recent repairs or repainting;

• Structural defects; and

• Hidden pest infestations.

These defects often only become apparent after occupation, and the cost of repairing them can be substantial.

The Property Condition Report: Why it is Important

One of the most important documents in a property transaction is the Property Condition Report.

This report is mandatory and designed to provide buyers with information regarding the condition of the property and any known defects.

The report typically covers matters such as:

• Roof leaks;

• Structural issues;

• Plumbing defects;

• Electrical problems;

• Pest infestations;

• Boundary and encroachment issues; and

• Any other known defects affecting the property.

Practical Steps Before You Sign an Offer to Purchase

Before committing to a purchase, buyers should:

1. Review the sale agreement carefully, particularly the voetstoots clause.

2. Review the Property Condition Report carefully.

3. Inspect the property thoroughly.

4. Seek legal advice if there is any uncertainty regarding the offer to purchase.

5. Consider appointing a professional property inspector.

Final Thoughts

A property purchase is often the largest financial commitment a person will make. Understanding the implications of the voetstoots clause, carefully reviewing the Property Condition Report, and conducting thorough inspections can help prevent expensive surprises after transfer.

If you are unsure about the implications of a voetstoots clause or would like a professional review of your Offer to Purchase before signing, contact Snymans Attorneys for trusted legal advice.

Written by: Marthinus van der Linde
Moderated and approved by: Rohula Kgabu

‍