Most property buyers and sellers have a rather vague idea of what the voetstoots clause means and how it applies to them. This can lead to disputes if the parties don’t realise how it affects the offer to purchase and other property transaction documents.
What is the voetstoots clause?
In South African law the voetstoots clause is a standard term inserted into real estate – and many other – sale agreements. It says that the purchaser is buying the property or other item as it stands, whether or not it has patent or latent defects.
Patent defects refer to defects that are openly seen, discovered, or understood to be defects, whereas latent defects refer to hidden or dormant defects. Latent defects are more contentious because they often require a trigger to bring it to one’s attention, for instance roof damage that only becomes obvious after a bad storm.
The clause protects sellers in the event of latent defects coming to light after the transaction has been concluded. However, whether defects are patent or latent, if sellers know about them, they cannot use the voetstoots clause to protect themselves against repairing them or disclosing them to the buyers.
Sarah-Jane Meyer says the voetstoots clause still applies to property transactions when the seller’s ordinary course of business is not property, such as individuals who are selling their own houses or apartments.
Sellers are required by law to disclose any latent property defects they are aware of. For the voetstoots clause to be set aside, buyers would have to prove that the sellers knew of the latent defects and deliberately concealed them with the intention of defrauding the buyers.
However, it can be very difficult – and costly – trying to prove that sellers deliberately withheld the information if problems are only discovered after the sale has already been concluded.