WHAT DOES VOETSTOOTS MEAN

This term means that property is sold ‘as it stands’ or ‘as is’.  The ‘voetstoots’ clause as it is commonly known is found in most agreements of sale of immovable property.  An example of the wording of a voetstoots clause is as follows:

                            

                             The Property is sold voetstoots in the condition in which it stands and the Seller gives no warranty with regard thereto, whether express or implied.

WHO DOES THE VOETSTOOTS CLAUSE PROTECT

The voetstoots clause is written into the agreement of sale for the protection of the Seller.  The protection this clause gives to the Seller is that the Seller is not responsible for any defects which are in the property whether these be latent or patent.  The Purchaser buys the property in the condition in which it is found at the date of sale regardless of the condition of the Property.

WHAT IS A PATENT AND LATENT DEFECT

A patent defect is one which is obvious and easily seen such as a large and noticeable crack in the wall.  A latent defect is one which is hidden and not easily seen.  Examples of latent defects are hidden damp, leaking pools and structural problems which can’t be seen with the naked eye.

WHAT ARE THE SELLER’S RESPONSIBILITIES:  THE DUTY TO DISCLOSE

The Seller has certain responsibilities.  Whilst this clause will protect a Seller, the protection only goes so far.  The Seller has the “duty to disclose” any defects which are latent, in other words any defects which are not obvious.  If the Seller hides defects in the property on purpose, the Seller will not be protected.  In other words the voetstoots clause will not protect a Seller who knows of a defect in the property but does not tell the Purchaser about the defect.  Sellers should also be aware that the law goes even further than a simple failure to tell the Purchaser about a defect in that the voetsoots clause will also not protect a Seller who tells a half truth.

It is good advice to fix as many of the defects as possible before selling the property.  An added advantage of this is that the property becomes more marketable as a result of these efforts.

WHAT ARE THE PURCHASER’S RESPONSIBILITIES:  THE DUTY TO INSPECT

The Purchaser also has certain responsibilities when buying property.  This responsibility is the “duty to inspect”.  The Purchaser must inspect the property and must be aware of the condition of the property as the Purchaser will have to “live” with any defects.  If the Purchaser sees defects that are not acceptable, the Purchaser must write into the offer to purchase that the problem be fixed by the Seller prior to registration of transfer. If the Seller accepts the offer to purchase with this condition, that Seller has then agreed to fix the problem.

CONCLUSION

In conclusion Sellers should remember that while the property is sold voetstoots it remains the Seller’s responsibility to maintain the property in the same condition from the date of sale until the date of transfer in the Deeds Office.

 

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