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Johannesburg - Most sale agreements state that what you see is what you get, but what does the voetstoots clause mean when you buy or sell property?
Liora Bamberger, lawyer at Liora Bamberger & Associates, said the voetstoots clause will protect the seller against visible defects like cracks in the wall or dirty carpets.
“These are called patent defects. Patent defects are defects that you can see and it’s up to the buyer to properly inspect the property thoroughly before making the offer to purchase so as to familiarise themselves with the visible defects,” she explained.
Bamberger said the voetstoots clause will protect the seller against those visible defects because the buyer has the onus to inspect the property and buy it as it is.
However, she cautioned that some defects are latent or hidden. “This means that you cannot see them, such as if the swimming pool was leaking, you wouldn’t be able to see it so it is up to the seller to disclose those latent defects.”
In cases like these, the seller has the onus to disclose the latent defects of which he is aware.
So where the roof trusses are rotten but the seller didn’t know and was not aware of it, he is not obliged to disclose it but he is obliged to disclose a defect of which he is aware, said Bamberger.
“Failure by the seller to disclose the latent defects of which he was aware renders him liable for the repair of those defects but the plaintiff, who is the buyer in this instance, has to prove that the seller was aware of the defect which is sometimes very difficult to do.”
Bamberger advised buyers to be in the loop about every detail about the property before signing on the dotted line.
“In Latin we say ‘Caveat emptor’ – ‘beware the buyer’ so familiarise yourself with the property, take your electrician, your plumber or any expert to inspect the property on your behalf before you buy it.”
- Fin24
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Liora Bamberger, lawyer at Liora Bamberger & Associates, said the voetstoots clause will protect the seller against visible defects like cracks in the wall or dirty carpets.
“These are called patent defects. Patent defects are defects that you can see and it’s up to the buyer to properly inspect the property thoroughly before making the offer to purchase so as to familiarise themselves with the visible defects,” she explained.
Bamberger said the voetstoots clause will protect the seller against those visible defects because the buyer has the onus to inspect the property and buy it as it is.
However, she cautioned that some defects are latent or hidden. “This means that you cannot see them, such as if the swimming pool was leaking, you wouldn’t be able to see it so it is up to the seller to disclose those latent defects.”
In cases like these, the seller has the onus to disclose the latent defects of which he is aware.
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So where the roof trusses are rotten but the seller didn’t know and was not aware of it, he is not obliged to disclose it but he is obliged to disclose a defect of which he is aware, said Bamberger.
“Failure by the seller to disclose the latent defects of which he was aware renders him liable for the repair of those defects but the plaintiff, who is the buyer in this instance, has to prove that the seller was aware of the defect which is sometimes very difficult to do.”
Bamberger advised buyers to be in the loop about every detail about the property before signing on the dotted line.
“In Latin we say ‘Caveat emptor’ – ‘beware the buyer’ so familiarise yourself with the property, take your electrician, your plumber or any expert to inspect the property on your behalf before you buy it.”
- Fin24
Add your voice to our Property Issue:
* Write a guest post
* Share a personal story
* Ask the experts
