Due to a purchaser’s duty to inspect the property before concluding a sale agreement a voetstoots clause protects a seller from liability for patent defects.

The seller will not be liable for latent defects where he or she was unaware of the defects at the time of the conclusion of the sale.

Where the seller was aware of the defects and concealed these defects from the purchaser, such conduct could constitute fraud and the seller could be held liable.

Cosmetic improvements are permitted; except where such improvements are made to hide an underlying problem such as filling in structural cracks and painting over them.

The Consumer Protection Act (“CPA”) only applies to the sale of property where the seller is selling the property in the ordinary course of his or her business and if the purchaser qualifies as a consumer to whom the CPA is applicable.

In general, the CPA will not apply to the sale of property in private sale transactions. However, the CPA may apply to the development of property.

In terms of section 55 of the CPA, consumers have the right to receive goods that are free from defects.

Therefore, an agreement of sale subject to the CPA, will prevent the seller from relying on a voetstoots clause to avoid liability for any defects in the property, irrespective of whether the seller was aware of the defects or not.

Where the purchaser is a consumer, as provided for in the CPA, buying a property from a seller who is selling the property in the ordinary course of the seller’s business, such as a developer, then the seller will be unable to rely on the voetstoots clause.

The parties can, however, avoid the implied warranty and sell the property as it is if they describe the property in detail and the purchaser explicitly accepts the property in such a condition.

Parties must therefore always be clear regarding the condition of the property before the conclusion of an agreement of sale.

Our conveyancers are ready to assist you should you require further information.

Written by Molisa Cheda.