A voetstoots clause can be inserted in an agreement of sale and a reader wants to know how its inclusion affects the purchasing of fixed property.
In particular, he asks what is included and what is excluded in terms of a building structure.
The voetstoots clause is often inserted in an agreement of sale involving fixed property.
In general, it means the property is sold ‘as is’. This implies that the seller provides no warranty in terms of defects in the property.
See the reader’s question here.
In the 2008 Supreme Court of Appeal ruling in the matter of Odendaal v Ferraris various defects were alleged in a Port Elizabeth property.
It included both physical defects and a lack of statutory consent (such as the approval of building plans), which led the court to consider the nature of a defect that would fall under the ambit of a voetstoots clause.
The court considered the matter of Glaston House v Inag and confirmed that any material imperfection preventing or hindering the common use of the object being sold is an aedilitian defect.
This is a defect giving rise to an action allowing the purchaser to claim, for instance, a reduction in purchase price.
In the Odendaal v Ferraris case the court added that the lack of statutory consent constitutes a latent defect as it may require demolition or alteration as a condition for approval.
The court thus confirmed that a voetstoots clause ordinarily covers the absence of statutory authorisation.
As it is the purchaser who would hope to avoid the consequences of the voetstoots clause, he must show that the seller knew of the latent defect without disclosing it as well as deliberately concealing it with the intention to defraud.
In the above matter certain defects alleged to be of a latent nature were held to rather be patent.
For example, where the purchaser discovered water damage after occupation, the court ruled that he had had an opportunity to inspect the property before buying and therefore had no recourse against the seller.
Had he requested access for inspection prior to purchase he would have discovered the damage.
The court ruled he had himself to blame and could not hold his failure against the appellant (the seller).
The court concluded that a litigant who undertakes the burden to establish fraud must ensure that both his allegations and the facts on which he relies to underpin them are clear and specific.
In this matter, the court went on to say that the purchaser failed to lay a basis for a finding of fraud and thus cannot avoid the consequences of the voetstoots clause.
These rulings show that while certain defects may be latent, a deliberate attempt by the seller to cover them up must be proved.
A thorough questioning of the seller, or the questionnaire attached to the agreement of sale, may address some latent defects known by a seller.
Insofar as other defects are concerned the purchaser should inspect the property thoroughly before submitting an offer to purchase.
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