Voetstoots & The Property Practitioners Act
Category Buying Advice
Whether you're a first time buyer or a seasoned property investor, purchasing property is a large investment - for many it's the largest expense they'll ever make. That's why it's so important to understand the voetstoots clause. So, what does voetstoots actually mean? And more importantly, what does voetstoots mean in the age of the Property Practitioners Act, 2019?
Voetstoots Legal Definition
Voetstoots is a legal term from Roman-Dutch law according to the legal eagles at STBB. Translated, "voetstoots" means "foot push". For example, if you were to purchase a house but the perimeter was shoddily built and fell over in a gust of wind - it's your responsibility as purchaser to have tested this by giving it a push with your foot. Of course, that doesn't mean you should go around leaving shoe prints on the walls of every open day or house showing you attend but the principle is simple. It's the buyer's responsibility to thoroughly inspect the property. The flip side of the coin however is that it's also the seller's responsibility to declare known defects at the time of sale. That's why voetstoots is such a common cause of contention. According to South African law firm, Adams & Adams, "The voetstoots clause is a provision in the agreement which stipulates that the purchaser buys the property from the seller as it stands and thereby indemnifying the seller against claims for damages in respect of any defects on the property, whether patent or latent."
Patent Defects vs Latent Defects
In the eyes of the law there are two different types of defects - both of which buyers and sellers should know about. Patent defects are those which are easily visible. These defects include things like a broken window, cracked wall, or mould. Latent defects are problems which are not immediately apparent. These defects include a leaky roof, structural defects like eroding foundations, or rotten wood. Latent defects are issues which are often difficult to detect and may not be known to the seller but they are often easily detectable under specific circumstances (i.e. during rain storms).
What Does Voetstoots Mean When Defects are Detected After Sale?
If defects only become apparent after the sale has been agreed upon or even after the title transfer has taken place, the seller may still be obligated to cover certain defects. Although designed to protect the seller, voetstoots isn't a bulletproof vest. If a seller deliberately withholds knowledge of a latent defect then they may be liable to cover the costs of repairs or even refund parts of the purchase price!
Voetstoots & The Property Practitioners Act, 2019
The Property Practitioners Act, 2019 came into effect on the 1st of February 2022. One of the most overlooked aspects of this legislation is that it now stipulates the inclusion of a mandatory disclosure form in any mandate. That means when an owner gives a property professional the right to sell their property on their behalf, the property professional may not proceed without a full list of all known patent and latent defects. Making condition reports compulsory will go a long way towards preventing disputes between buyers and sellers! It gives sellers the opportunity to act in good faith and will help buyers know exactly what they're buying even if they're not seasoned property inspectors.
What's The Bottom Line?
With all of this legal jargon flying around it can be easy to get dizzy trying to keep track of things... Additionally, each property is unique and the list of patent and latent defects means that each property is its own unique scenario. Thankfully, there is solid advice that applies to every case.
- If you're a seller, honesty is the best policy.
- If you're a buyer, do your homework and inspect the property carefully!
- No matter who you are, always get the help of licensed property professionals.
Author: Paul Wasson
