Understanding "Voetstoots": The Basics
When you're in the process of buying or selling a place, you might encounter a "voetstoots" clause in the paperwork. In simple terms, "voetstoots" means selling the property "as is" or "as it is." But what does this entail? Essentially, the buyer is taking the property with all its apparent (patent) and hidden (latent) issues.
Decoding Defects: Patent vs. Latent
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Patent Defects: These are the obvious issues you can spot just by looking around, like a cracked window or a hole in the wall.
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Latent Defects: Think of these as sneaky ninjas – you won't notice them unless you're an expert. Leaks, shaky foundations, or hidden damp spots fall into this category.
Legal Dynamics: Seller's Responsibility
In the legal world, a seller isn't typically responsible for patent defects unless the contract explicitly states otherwise. It becomes the buyer's responsibility to handle the obvious issues. For instance, if there's a crack in the window, and the contract doesn't mandate the seller to fix it, they're off the hook. However, when it comes to latent defects, the seller usually takes the blame.
The Game-Changer: Voetstoots Clause
Now, introduce the voetstoots clause, and the dynamics shift. With this clause, the seller isn't accountable for any defects—whether patent or latent—unless the buyer can prove the defect was
hidden with the intent to deceive. Proving deceitful intent is no easy feat; it requires more than just showing there was a hidden defect.
Timeline Matters: Unpacking Three Key Periods
Let's break down the timeline into three crucial periods:
Before the Agreement: If defects emerge before the agreement is signed, it's on the buyer, unless they can prove it's a hidden, deceitful latent defect.
After the Agreement but Before Property Transfer: If defects surface during this period, it becomes the seller's problem (unless caused by the buyer).
After Property Transfer: Once the property is officially in the buyer's name, any new defects become their issue, unless they can prove those defects were also hidden with deceitful intent.
Consumer Protection Act (CPA) Impact: A New Era
The new rules under the Consumer Protection Act (CPA) are reshaping the landscape of selling property "voetstoets." However, there's a catch. If the seller explicitly informs the buyer about the property's specific condition, and the buyer agrees to accept it as is, voetstoots clauses can still apply. This places the responsibility on the seller to disclose the property's condition and defects.
Buyer's Rights: Defect-Free Property
In essence, buyers now have the right to receive defect-free property in regular business transactions, unless defects are explicitly communicated. Sellers can no longer rely on the voetstoets clause if they conceal serious defects without informing the buyer beforehand. If defects are discovered, the buyer can request the seller to fix the issues or refund a reasonable portion of the purchase price within six months after receiving the property.
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