Most residential property sales agreements contain the voetstoots clause which states that ‘the property is sold ‘voetstoots’, as is at the date of signature hereof, together with all fixtures and fittings and subject to the conditions and servitudes contained in the title deeds of the property as it stands on the date this agreement is concluded, with all visible and invisible defects applicable to such a property.’
The voetstoots clause has until recently always been accepted at its face value, most buyers acknowledging that they buy their home ‘as it is’. However, some people have now picked up the idea that, since the passing of the Consumer Protection Act, the ‘voetstoots’ clause is no longer relevant because the agent, as a member of the supply chain, can be held responsible for any defects which later become evident
The Agreement of Sale is signed between two parties, the seller and the buyer. The seller is by law obliged to disclose any defects in the home of which he is aware at the time of the sale, but he cannot later be held liable for those of which he was not aware. Voetstoots is always applicable where the seller is not selling the property in the course of his normal business and the CPA does not make voetstoots illegal or invalid in these instances.
Estate agents cannot inspect a property to the extent that they can vouch for all possible defects. They can be held to ‘reasonable responsibility’ but ultimately still rely on information from the seller. The EAAB produced the so-called Immovable Property Condition Report which is questionnaire that the seller completes and thereby declares the ‘condition’ of the property. This is presented to the buyer and both parties sign the report. In this way the buyer can at least have some recourse should the seller have made false declarations.
Pre-sale inspection by prospective buyers is essential.
It is generally agreed among South African attorneys, that the purchaser should take it upon himself to inspect every aspect of the home or, better still, get a qualified inspector to do this for him.
A developer, on the other hand who sells property “in the normal course of his business” cannot sell a property subject to a voetstoots clause or condition as he is recognised as a supplier in terms of the CPA. There are, however, instances which do exonerate a developer, e.g. where certain technicalities have to be taken into account, but these are not typical.
In most transactions the estate agent is merely a facilitator, not a party to the contract, and therefore can only be prosecuted in terms of the Consumer Protection Act if his supply of service was in contravention of the CPA.