What the law says about selling a home with defects in South Africa

 ·26 Feb 2023

Sellers of homes are not always protected by law if there is a latent defect to the property that they are unaware of.

The voetstoots clause does not protect sellers aware of a latent defect in the property they are selling if they do not notify the buyer of the issue.

Buyers will often discover unpleasant surprises shortly after they purchase a property; however, the voetstoots clause states that the purchaser buys the property from the seller as it stands, preventing the seller from claiming damages with respect to defects in the property.

There are two types of property defects:

  • A latent defect is not readily revealed by a reasonable inspection of the property being sold
  • A patent defect is not hidden and should be easily noticed during a reasonable inspection.

The purchaser has the duty to acquaint themselves with the condition of the property when purchasing it and cannot later claim that they did not see any patent defects.

However, sellers who are aware of the defects must disclose the information to the purchaser, as they will not be protected by the voetstoots clause if the buyer later discovers the known issue within the property.

Johan du Toit and Noluthando Ndala from Barnard looked at a case – Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 – which confirmed that sellers who are aware of a latent defect are not protected by the voetstoots clause.

The case 

The Plaintiff approached the Court for an order granting her a reduction in the R2.3 million selling price of the property she purchased, with an additional order demanding the sellers pay for repairs done to the property.

The Plaintiff viewed the property with an estate agent but was unaware of a damp problem which affected the bedrooms, kitchen, dining room, and other parts of the property.

The Plaintiff said that she had noticed bubbling and peeling of the wall paint, especially in the main bedroom. She approached the sellers directly to enquire about the affected area, who said that there was no waterproofing problem at the property.

Shortly after, but before the purchase of the property, Plaintiff noticed that the damp on the walls had been repaired.

Upon moving into the property, Plaintiff noticed the true extent of the damp issue, with the discolouration of the carpets and the smell of damp evident.

The sellers denied that they were aware of a damp problem and that the house was sold to her “voetstoots” in any event. They also denied that she had approached them regarding the damp problem.

An expert witness at the trial testified that the defects shown in their report were all caused by incorrect design and construction of the property and that the inherent damp issue manifested itself soon after the first year of rains on the property. The expert witness believed that the sellers knew about the damp problem.

The Court said that the damp problem was a latent defect of the property and that the sellers must have known about the issue.

The Court also found that the sellers’ failure to inform the purchaser of the defeat was equivalent to deliberately withholding knowledge of the damp issue, which could be seen as fraudulent non-disclosure on the part of the sellers.

Ultimately, the sellers were not protected by the voetstoots clause and were ordered to pay just under R415,000 to the purchaser – in line with a quotation given by a contractor to fix the problem.

Read: Bad news for homeowners in South Africa

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