The Consumer Protection Act (CPA) does not negate or override the “voetstoots” clause that still appears in most property sale agreements.
This is according to Rawson Property Group, which notes that this issue has been extensively discussed by real estate and legal experts as many consumers are still under the impression that the “voetstoots” clause is no longer applicable to home sales and may not be included in sale agreements.
“They seem to think that if they find any latent defects in a property after they have purchased it, the CPA will entitle them to cancel the deal and get their money back, or claim damages either from the seller or from the agent who facilitated the deal,” said Bill Rawson, chairman of the Rawson Property Group.
“However, this is simply not true. It has become clear that the CPA may apply in some cases where the seller is a property developer or a speculator whose ‘usual business’ is to build homes and sell them, but does not apply when an individual homeowner is selling his home to another individual – because it is not the ‘usual business’ of that homeowner to sell real estate.”
In addition, since an agreement of sale is a contract between the seller and the buyer, and the estate agent is generally only the facilitator of that agreement, the buyer cannot look to that agent for damages if he later decides he is not satisfied with his purchase, Rawson said.
This means, Rawson said, that the seller or his agent is still allowed to include a “voetstoots” clause, which basically states that the buyer is agreeing to purchase the property “as is” or “as it stands” on the date the sale agreement, including all visible and invisible defects and any conditions or servitudes contained in the title deeds.
“The buyer is of course quite entitled to refuse to accept this clause, but if he does accept it, he will not be able to cancel the sale agreement if defects are later found in the property, unless he can definitively prove that these are latent defects and that they were deliberately concealed with the intention to defraud him.”
In a recent Pietermaritzburg High Court case (Haviside v Heydricks and Another) the court found in favour of the seller despite the fact that the buyer only discovered certain defects after the transfer of the property.
“The judgment was that the “voetstoots” clause in the sale agreement meant that the buyer had agreed to buy the property as it stood and that the seller could not be held liable for latent or patent defects. If the buyer had wanted to escape the provisions of the “voetstoots” clause, he would have had to prove that that seller intentionally withheld the information from them, but had not done so,” said Rawson.
When is comes to ordinary home sales it’s a case of ‘as you were’ – and buyers should still inspect any home they are thinking of buying with great care, and get a professional home inspector to help them if necessary.
Rawson called on home sellers to be as open and honest as possible about any defects that are known to them.