Does the voetstoots clause still protect a seller?

Almost every South African offer to purchase contains a voetstoots clause. It is one of the oldest ideas in our law of sale, it comes from the Dutch for "with a shove of the foot", and it means the buyer takes the property as it stands, with whatever is wrong with it.

Buyers assume it is unbeatable. Sellers assume it is a shield against anything. Both are wrong, and the gap between the two assumptions is where most post-transfer litigation happens.

Latent and patent defects

Everything starts with which kind of defect you are dealing with.

A patent defect is one that would be discovered by any reasonably thorough inspection. A crack across a wall, a missing window pane, a visibly sagging gutter. The buyer is expected to look, and the law does not help a buyer who did not.

A latent defect is a material defect that is not visible on a reasonable inspection. Rising damp behind a wall unit, a leaking roof that only shows in heavy rain, a defective drain, a structural problem under a finish.

Voetstoots covers latent defects. That is the whole point of it: a seller who genuinely did not know about the damp under the plaster is not liable to the buyer who discovers it two winters later.

Where voetstoots stops

The clause protects innocence, not concealment.

To escape a voetstoots clause a buyer must show more than that the seller knew about the defect and said nothing. The buyer must show that the seller knew of the latent defect and deliberately concealed it with the intention to defraud. That is a demanding test and it is why many claims fail: the buyer proves the defect, and proves that it probably existed before transfer, but cannot prove what was in the seller's head.

Where it is proved, the clause falls away entirely and the seller is liable.

The evidence that carries the day is almost always documentary or from third parties rather than from the parties themselves:

• a quotation or a contractor's report the seller obtained for the same defect before selling
• an insurance claim for the same problem
• a body corporate or homeowners association record of the complaint
• a repair that covered the defect rather than fixed it, which is the classic fact pattern: paint over damp, a tile over a crack, a cupboard in front of a wall
• a neighbour or previous tenant who reported it to the seller

The Consumer Protection Act changes who can use it

This is the part that surprises sellers who happen to be in property.

Where the seller is a supplier selling in the ordinary course of business, the Consumer Protection Act applies to the transaction, and a voetstoots clause cannot be used to exclude the implied warranty of quality the Act gives. A developer selling units cannot contract out of liability for defects by inserting voetstoots into the sale agreement.

Where the seller is an ordinary person selling their own home, the CPA does not apply on that basis, and a properly worded voetstoots clause remains enforceable.

The line is about the seller's business, not the buyer's status. A private individual selling one house is not a supplier. Someone who buys, renovates and resells houses regularly may well be, and should take advice before assuming the clause protects them.

The mandatory disclosure form

The Property Practitioners Act 22 of 2019 added an obligation that has changed the practical position considerably.

A property practitioner may not accept a mandate unless the seller has provided a fully completed and signed mandatory disclosure form in the prescribed form. The form is then attached to the sale agreement.

The consequence of skipping it is precise and worth stating carefully. Failure to complete, sign or attach the form does not make the agreement void. What it does is require the agreement to be interpreted as if no defects or deficiencies in the property were disclosed to the purchaser.

That is a significant exposure for a seller. A seller who mentioned the leaking roof verbally, and did not record it on a form that was never completed, is in the position of somebody who disclosed nothing at all.

The Act does not repeal voetstoots. The two operate together: the buyer still has a duty to inspect and still carries patent defects, but the seller who fails to disclose known defects on the form risks losing the protection the clause would otherwise have given.

What a buyer should actually do

The legal remedies are slow and expensive, so the useful work happens before signing.

Get an inspection. A home inspector costs a fraction of one latent defect and converts unknown risk into a written list. It also converts latent defects into patent ones, which is the point: once you know, you can negotiate.

Read the disclosure form and keep it. If there is no form, ask for one before you sign. If the agent says it is not necessary, that is itself worth noting.

Ask specific questions in writing. "Has the roof ever leaked?" answered in writing is evidence. The same question asked at a viewing is not.

Look for the repair that hides rather than fixes. Fresh paint on one interior wall, a new cupboard against an outside wall, a rug in an odd position.

Do not rely on the estate agent's assurances. The agent is not the seller, and a cheerful answer from an agent is rarely evidence of the seller's knowledge.

What a seller should actually do

Disclose. It is counter-intuitive, because disclosure feels like inviting a price reduction, but the alternative is worse.

A disclosed defect is priced into the sale and cannot come back. An undisclosed known defect is a claim waiting to be brought, and the claim is not limited to the cost of the repair: it comes with legal costs and, where fraud is found, a considerably less sympathetic hearing.

Complete the disclosure form properly and keep a copy. If a defect was repaired, say so and say by whom, because a documented repair is a defence and an undocumented one looks like concealment.

What a buyer can actually claim

Winning on voetstoots is only half the question. The other half is what you get, and there are two distinct remedies with very different consequences.

Cancellation and repayment. Where the defect is so material that the buyer would not have bought the property at all had they known, the buyer can ask to cancel the sale, return the property and recover the purchase price. This is the dramatic remedy and it is correspondingly hard: a court will not undo a property transfer over a defect that can be repaired.

A reduction in the price. The more common remedy. The buyer keeps the property and recovers the difference between what was paid and what the property was actually worth with the defect. In practice this is usually argued as the cost of putting the defect right, supported by quotations, though strictly it is a difference in value rather than a repair bill.

Damages, in addition, where fraud is established. This is where proving deliberate concealment pays for itself, because it opens up consequential losses that the price-reduction remedy does not cover.

The practical point for a buyer is to get quotations early, from more than one contractor, and to photograph the defect before repairing it. Buyers routinely fix the problem first, because they have to live in the house, and then find themselves proving the extent of a defect that no longer exists.

Prescription runs while you are negotiating

A claim arising from a defective property is an ordinary debt, and it prescribes three years from the date the claim arose, which is generally when the buyer knew or ought reasonably to have known of the defect and the identity of the seller.

Sellers and buyers frequently exchange letters for a year or more, and the exchange does nothing to stop the clock. A letter of demand does not interrupt prescription. Only summons, or the seller's acknowledgement of liability, does. Our prescription checker works out where a claim stands, and our guide on checking whether a debt has prescribed explains what does and does not interrupt it.

Worked example

This example is illustrative. Pieter sells his house. Two years earlier he obtained a quotation to fix rising damp in the lounge and did not have the work done. Before listing, he has the wall replastered and painted.

The buyer, Andile, inspects the house and sees a freshly painted wall. He buys subject to a standard voetstoots clause. No mandatory disclosure form is completed. The following winter the damp comes through.

Andile's case is strong. The damp is a latent defect, not visible on reasonable inspection. The quotation shows Pieter knew about it. Replastering and painting over the defect rather than treating it is the classic evidence of deliberate concealment, because it made the defect harder rather than easier to detect. And because no disclosure form was completed, the agreement is read as though nothing was disclosed.

Pieter's voetstoots clause protects him against defects he did not know about. It does not protect him here.

Change one fact and the outcome changes. If Pieter had disclosed the damp on the form, Andile would have bought with his eyes open, the price would probably have reflected it, and there would be no claim at all.