What does it mean?

When buying an immovable property, you are likely to come across a clause in your sale agreement which reads as follows:

“The purchaser acknowledges himself to be full acquainted with the property, its locality, nature, boundaries, beacons……..; and the purchaser acquires the said property “voetstoots”, as it stands, with every benefit and defect, patent or latent.”

In very simple terms, when you buy an immovable property and the agreement relating thereto  contains the above clause, it means that you as the purchaser:-

• Has inspected the property;
• You are happy to purchase the property with all its defects that can be seen (patent) and those that cannot be seen (latent).

In other words, should there be a leak on the roof for example, you will not look to your seller to rectify the problem.

Given the fact that most homes in the market for sale are second homes – the voetstoots clause is pretty much standard. To protect buyers who buy properties through property practitioners (formerly referred to as estate agents), Section 67 of the Property Practitioners Act of 2019 (“the Act”) provides that a property practitioner must not accept a mandate to sell the property unless the seller has provided a fully completed and mandatory disclosure form – disclosing defects, which disclosure form must be provided to a prospective purchaser who must also sign that form when the sale agreement is concluded. This helps prospective purchasers in the sense that they get to know upfront before they conclude the agreement, what defects are there in the property.

What happens if your seller hides defects and / or fails to disclose them to you as a buyer?

As a buyer you later discover defects after taking transfer of the property. You raise this with your seller, and he says, “you bought the property as is – voetstoots – it is your problem now.” Do you as a buyer have any recourse against your seller in these circumstances? The Supreme Court of Appeal of South Africa (“SCA”) answers this question in its recent decision handed down on 15 June 2023 in the matter of Jan Pieter Le Roux (“appellant”) and Christian Zietsman and another (“respondent’).

Briefly, the facts of the case were that the respondents (buyers) bought a guesthouse from the appellant (seller). The property was transferred into the respondents’ names. Barely three months after they took occupation of the property, it rained heavily. There was extensive leaking of the roof, and the guesthouse was flooded with water. The furniture and linen were soddened. The respondents sued the appellant for damages on the basis that the appellant was aware of the defects in the roof – that he had a duty to disclose the defects but had failed to do so. The appellant denied that he fraudulently did not disclose that the roof leaked. He also alleged that the respondents were precluded from suing him for damages because the deed of sale contained a voetstoots clause. The respondents led the evidence of an engineer who testified that the cause of the leaking roof was of a structural nature. He also testified that efforts were made to seal off leaks and that the problem had escalated over time. The engineer concluded by saying “any claim by the previous owner that no problems with roof leaks were experienced in the past would simply be impossible and untruthful”. The appellant denied that the leaking roof had been a problem for a long time. He maintained that the roof had been fixed by his handyman. He did not lead any expert evidence to rebut the engineer’s evidence. All the Courts which heard the matter (the Regional Court, the High Court and the SCA) found in favour of the respondents on the basis that:-

1. In the light of the engineer’s report, it was difficult to believe that the appellant could not have been aware of the seriousness of the leakage problems;
2. The appellant failed to disclose the true extent of the leakage of the roof and defects and that he withheld this information in order to secure the sale of his property. The failure to make this disclosure constituted fraud. Accordingly, the voetstoots clause could not be used as a defense against the respondent’s’ claim.

So what is the lesson?

1. The purchasers must thoroughly inspect properties before they put pen to paper;
2. The sellers cannot hide behind a voetstoots clause when they fail to make a full disclosure of the known defects in respect of their properties to their purchasers;
3. Estate agents are obliged by law to obtain from the sellers a mandatory disclosure form disclosing defects, if any, before they accept a mandate to sell a property.

Should you require property law related advice, please contact me, Sifiso Msomi on 031 575 7113 / msomi@wylie.co.za.