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Many buyers have the notion that they are “buying at their own peril” when entering a show day. We’ve all heard the horror stories of new home owners moving in and finding all sorts of defects with their new abode that they were not warned prior of.

 

But does the Voetstoots clause always apply? What if a seller is in clear violation of disclosing imperative information that would have influenced a buyer’s decision to purchase a house significantly?

 

When dealing with sellers, Faircape always ensures each seller fills out a Seller’s Disclosure Questionnaire. This details all latent and patent structural defects with a property that a buyer is entitled to be made aware of.

 

The Faircape Seller Defect and Condition Disclosure

All information disclosed in this document does not necessarily represent the true status of condition or defects listed in a house, however it does warrant that all disclosures represent the seller’s honest and true belief about the status of the property for sale.

 

A list of questions usually revolves around the following:

  1. Defects in the roof/any structures on the property
  2. Condition of the plumbing system
  3. Condition of the heating and air conditioning systems
  4. Defects in a swimming pool on the property (should there be one)
  5. Boundary lines
  6. Unconsented property constructions (i.e. unapproved/ improper building permissions).
  7. Municipal urban planning policies/permissions that will significantly impact the area where your property is situated.
  8. Any fixtures and fittings that are not in working order
  9. Water leakage or water penetration problems
  10. Adequate electrical supply to the property

 

This list indicates just a few of the questions that will need to be properly answered by the seller before a house is sold.

 

When does the ‘Voetstoots’ clause not apply?

While it is very easy for a seller to hide behind this clause, this Consumer Protection Act (CPA) has been amended to help protect innocent property buyers from reaching their demise. This is represented in Section 55(2) and states:

 

  1. Reasonably suitable for the purpose for which they are generally intended or suitable for any specific purpose which was communicated to the supplier.
  2. Of good quality, in working order and free from defects.
  3. Usable and durable for a reasonable period of time.
  4. Compliant with any other legislation which regulates their quality.

 

Furthermore, every transaction that falls into the scope of the Consumer Protection Act will have an ‘implied warranty of quality’. This means that anything sold will be expected to be of good quality, good working order and free from any defects (unless otherwise stated in the seller’s defect disclosure document).

 

As mentioned in last month’s blog, Top Tips for Buying a House on the Coast, we mention that all patent and latent structural defects need to be addressed when viewing a property you would potentially like to purchase.

 

The Voetstoots clause remains in full force in property sales where the CPA does not apply.

 

When can the buyer cancel the sales agreement?

Even with the Voetstoots clause, there are certain exceptions where a buyer is perfectly liable to ask for either a reduction in the selling price or can cancel the sales agreement altogether.

 

  1. The seller deliberately withheld information about certain defects that were concealed at the time of viewing and which would have resulted in the buyer not buying the house (or at the advertised selling price).
  2. The property had a defect at the time of sale.
  3. The seller knew of the defect and did not disclose to the buyer.
  4. The seller misrepresented or made a fraudulent claim about the property.

 

The Voetstoots clause does indeed protect a seller in many ways, however, it does not protect against intentionally withholding information from a potential buyer. If a seller is found to be in contravention of the Consumer Protection Act, a buyer is well within their rights to cancel a sales agreement or enquire about an altered selling price which takes into the account the existing and now known defects.