To understand the very common “Voetstoots” clause in an Offer to Purchase, both sellers and purchasers need to understand the consequences of the Consumer Protection Act as well as the difference between patent and latent defects.

Those defects that can be easily identified by a buyer during a simple inspection of the property, is known as patent defects. These will include a broken windows and doors or cracked tiles.

Defects that are hidden and not easily identifiable by a buyer on inspection, will be classified as a latent defect and will include electricity issues, broken plumbing or roof leaks.

Should the voetstoots clause not be present in a deed of sale, the seller will guarantee that the property is without any defects but with the voetstoots clause or “as is”-clause present, the purchaser will take the property as it stands including all defects. The seller can however not hide behind the voetstoots clause if he was aware of any latent defects and deliberately concealed the same from the purchaser.

The arrival of The Consumer Protection Act has given purchaser a lot more protection in that a purchaser is entitled to receive goods that are free of defects and if not, the purchaser can claim a full refund on return of the goods. But….this only applies to sellers that sell property in the ordinary course of business, for example developers and builders. Private sales between sellers and purchasers will fall outside the protection of the Act.

Sellers should therefor protect themselves by disclosing all known defects in a signed annexure and also agree with the purchaser on how these defects will be dealt with.

A fight in court over whether or not the CPA applies and if the voestoots clause is valid or not, could be a very costly affair.

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