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UNDERSTANDING VOETSTOOTS: UNVEILING LATENT AND PATENT DEFECTS WHEN SELLING A PROPERTY

Selling or purchasing a property is a significant transaction, fraught with potential legal complexities. A key part of property transactions is the “voetstoots” clause, meaning the property is sold “as is” with all its faults. Voetstoots is crucial for balancing the interests of buyers and sellers, especially regarding hidden and obvious defects.

 

The Voetstoots Clause: A Double-Edged Sword

The voetstoots clause in property sale agreements protects sellers from being liable for hidden defects in the property at the time of sale. It means the buyer takes on the risk and cost of any repairs for defects discovered after the sale is completed.

However, this doesn’t mean sellers can blatantly conceal defects or act fraudulently. If the seller is aware of a defect and deliberately fails to disclose it, they may still be held liable under certain circumstances.

 

Latent Defects: The Hidden Dangers

Latent defects are defects that are not readily apparent upon a reasonable inspection of the property. These defects may only become evident after the property has been purchased and the buyer has had a chance to live in or use the property. Common examples of latent defects include structural issues, faulty plumbing, or electrical problems that are not immediately noticeable.

In the context of voetstoots, the responsibility of uncovering latent defects rests primarily with the buyer. The buyer is therefore encouraged to conduct thorough due diligence, including property inspections and assessments, to minimize the risk of purchasing a property with significant undisclosed issues.

 

Patent Defects: The Clearly Visible

In contrast to latent defects, patent defects are defects that are easily noticeable upon reasonable inspection of the property. These defects are usually evident to anyone examining the property, such as a crack in a wall. A seller cannot escape liability for patent defects by relying solely on the voetstoots clause, especially if the defects were intentionally concealed or misrepresented.

 

Mitigating Risks: The Role of Full Disclosure

While the voetstoots clause can absolve sellers of responsibility for latent defects, it’s important to note that South African law encourages transparency and honesty in property transactions. Sellers are obligated to make full and accurate disclosures regarding the condition of the property, even if a voetstoots clause is included in the agreement. This means that sellers should provide potential buyers with information about both latent and patent defects that they are aware of.

Failure to disclose material defects can result in legal consequences for the seller, including the potential for the buyer to cancel the sale agreement or claim damages.

 

Conclusion

The concept of voetstoots in property transactions offers a certain level of protection to sellers by allowing them to sell their property without taking responsibility for latent defects. However, this protection is not absolute, and sellers must still adhere to legal and ethical standards of transparency and disclosure. Buyers, on the other hand, should approach property transactions with due diligence, conducting thorough inspections and seeking professional advice to minimise the risk of purchasing a property with hidden defects.

In the dynamic world of property transactions, the balance between voetstoots and disclosure ensures that both buyers and sellers have a fair playing field, fostering trust and confidence in the real estate market.

 

Contact Brookes Attorneys for more information admin@brookes.co.za | Cherise Venketiah

 

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