Understanding the "voetstoots" clause and how it affects you, as either the seller or purchaser, can go a long way to ensuring that the sale or purchase of your home is a pleasant experience.
Otherwise it can be one fraught with acrimony due to misunderstandings of your rights and obligations, warns Deborah Abbott of Shepstone & Wylie Attorneys' property department.
"Although, there is a general understanding that when one purchases a property 'voetstoots', one is buying it 'as it is', 'as it stands' or 'with all its faults', many disputes and much unpleasantness have arisen where one or both of the parties has failed to apply their minds to what is required of them," Abbott says.
She explains that the voetstoots clause is often included under the warranties clause and usually states something like the following: "The property is sold in its present condition, 'voetstoots' at the date of signature hereof, without liability on the part of the seller for any defects, patent or latent, in the property, or any damages suffered by the purchaser by reason of such defects."
Briefly, the effect of this clause, when there is nothing in addition, is that the seller does not take the risk of any defects (patent or latent), but is liable for misrepresentations of any kind. In other words, the seller cannot contract out of liability for fraud and he or she cannot cover himself or herself by saying "the purchaser inspected the property" and that the seller is accordingly covered by the voetstoots clause.
Abbott explains what this means for a potential buyer. "Before putting pen to paper, the purchaser needs to thoroughly inspect the property." For example, it is incumbent upon him or her to check that: garage doors open; taps work; toilets flush; all doors and windows open and close; there is no wood-rot in the windows; there are no cracks in the walls or damaged fitted carpets; there are keys for internal doors; the pool pump is in order; and so on.
Raise questions and place conditions on the purchase before the sale agreement. This is the time to stipulate your wishes as a written condition of sale; alternatively negotiate a lower purchase price.
It is imperative that any conditions to rectify a defect be put in writing as the voetstoots clause is usually followed in the sale agreement by a clause such as the following: "Neither party may rely on any representation which allegedly induced that party to enter into this agreement, unless the representation is recorded in this agreement."
Be informed when you purchase a property, so that you do so "warts and all" or not at all, Abbott advises.