Debunking the ‘voetstoots’ myth
Voetstoots does not relieve sellers of their duty to disclose latent defects
You may believe that as a seller of a property, the voetstoots clause in an offer to purchase protects you against having to fully disclose all known defects to a buyer.
Likewise, as a buyer, you may believe that once you accept an offer to purchase with the voetstoots clause, you have no recourse if you discover latent defects after the sale has gone through.
Both scenarios are wrong!
“Voetstoots merely states that ‘you purchase the property with the existing problems and I am not going to fix them, so you take it as is’. But this does not mean that the seller does not have to fully disclose what the problems are in order for the buyer to make an informed decision. As the seller, you’re still required by the law to fully disclose any defects you should reasonably know about,” explains Lee-Ann Dobrescu, head of group business development at Hollard.
A lot of sellers believe the voetstoots clause can be added to an offer to purchase as protection against any action by the purchaser for defects that emerge post the sale of the property. However, since the introduction of the Consumer Protection Act (CPA), the voetstoots clause has become redundant as the CPA requires sellers and purchasers to be more fair and equitable in their contractual interaction.
“The voetstoots clause can no longer be inserted into agreements for property sold to individuals or small corporations in the ordinary course of business, without it specifying the list of defects to the buyer. The purchaser must be informed that the property is offered in a certain condition and must expressly accept the property in that condition. Defects must be disclosed expressly and a general clause that the purchaser accepts the property “as is” without disclosing the defects is no longer acceptable,” explains Lee-Ann.
How can you protect yourself?
For buyers there is always the point where their house-hunting excitement is replaced by post-offer anxiety and the question becomes, “What if there is something wrong with the place and I can’t afford to fix it?”
All of this worry and hassle can be easily done away with by taking out a home warranty. This warranty addresses the issues around defects with a professional property inspection that is coupled to an insurance policy.
For the seller, the pressure of the defects disclosure list and hoping that you have remembered everything is quickly resolved, even that niggling problem that you haven’t really fully investigated the extent of. The cost of the warranty can be covered within the total price of the house.
