- The voetstoots clause protects the seller from liability for any defects in the home, including latent defects.
- The exception is when the seller knew about a latent defect but tried to conceal it. However, this is difficult to prove in court.
- Buyers should hire a property inspector, and make property inspection a requirement of the offer to purchase, to ensure they uncover any defects beforehand.
On a financial and personal level, a house is the most important investment you’ll make. So make sure you’re well informed before applying for a home loan.
One thing you need to know about is the voetstoots clause. It pertains to defects in the home.
What is the voetstoots clause?
- The English equivalent is buying something “as is”, i.e. in the condition you find it. It’s up to you to test and make sure the thing is fit for the purpose you need it.
- Originating in Roman-Dutch law, voetstoots is a Dutch phrase that translates as “testing something by shoving it with one’s foot”, and implies that when you buy something, what you see is what you get and it’s your responsibility to give it a kick with your foot, if that’s what you need to do to test it.
What does voetstoots mean for the buyer?
- It means that any complaints you have following the transfer of property will not be entertained by the seller, as the responsibility is on you to check what you’re buying.
What this means for defects in the house
First, you should know that there are two kinds of defects:
- Patent defects: Defects that are obvious upfront, such as a broken window, cracks in the wall, or rotting woodwork.
- Latent defects: Defects that may not be revealed by a home inspection, and may only become evident long after the home has been purchased. For example, rusting pipes, hidden water damage, or faulty geysers.
What you can do about patent defects?
These are easy to resolve. You can simply make it a condition of the offer to purchase that the seller must fix any patent defects.
What about latent defects?
The seller is protected by the voetstoots clause when it comes to latent defects.
However, there is an exception. If the seller knew about a latent defect but did not disclose it to the buyer, then the buyer can claim damages as this is tantamount to fraud.
Of course, the challenge here is proving that the home seller knew.
If the seller concealed the defect in an obvious way, for example, by painting over damp, that might be easier to prove in Court.
The moral of the story: Enlist a property inspector
- The cost of having a property inspection performed is worth it, as it will save you the cost and inconvenience of dealing with latent defects after they’ve been discovered.
- You can include the need for an inspection as a clause in the Offer to Purchase.
What about the Consumer Protection Act?
- Having come into effect on 1 April 2011, the Consumer Protection Act has altered the playing field somewhat.
- The seller can no longer feel completely secure under the protection of the voetstoots clause, as the CPA grants the buyer the right to receive goods that are of good quality, and suitable for the purpose for which they are generally intended.
- However, the complication for home buyers is that the CPA only applies to sales made “in the ordinary course of business”.
- A home being sold by an owner is considered to be a private sale and isn’t part of a business. This means no CPA protection for most home buyers.
- The position is different where you buy from a developer, builder or investor seller who makes property sales as a business.
Protect yourself as a buyer
- By seeking legal advice from an attorney before signing the Offer to Purchase.
- By ensuring that a home inspection is required by the Offer to Purchase.
If you want to go ahead with the purchase of a property, bear in mind that a home loan comparison service such as ooba Home Loans can help you secure the best deal on your home loan.
We submit your application to multiple banks and allow you to compare the deals they offer. You can choose one with low-interest rates. This frees up funds for additional costs such as that of the home inspection.
We also offer a range of tools that can make the homebuying process easier. Start with our Bond Calculator, then use our Bond Indicator to determine what you can afford. Finally, when you’re ready, you can apply for a home loan.
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