When purchasing a home it is advisable to make sure that you understand the content of the deed of sale before you sign on the dotted line. Obtaining legal advice in this regard can save you a lot of time and money. Purchasers must make one hundred percent sure that they are happy and familiar with the condition of the property before signing the deed of sale. A property condition report can assist with this.

In our law the seller cannot be held liable for patent defects by virtue of the caveat emptor (“let the buyer beware”) principle which in essence means that the purchaser must make sure the property he is purchasing is in a good condition. The purchaser must accordingly carry out a thorough and reasonable inspection of the property.  Patent defects are defects easily seen with a reasonable examination of the property. Examples of patent defects will be cracked tiles, broken windows, cracks in the walls, and so forth. Should the purchaser wish that certain patent defects be repaired, it should be noted in the deed of sale.

Most residential properties are sold “voetstoots”, “as is”, the reason being that in terms of South African Law the seller is liable for latent defects unless specifically excluded in the deed of sale by virtue of the voetstoots clause. The voetstoots clause excludes the seller’s liability for any latent defects in the property.  Latent defects are defects which cannot be seen or discovered by the purchaser upon reasonable inspection of the property.   Examples of such defects include a leaking roof caused by serious structural problems, the absence of approved building plans, lack of an adequate water supply, to name a few.  

The seller can however still be held liable for latent defects, notwithstanding the voetstoots clause, if the purchaser can prove that on the date the seller signed the deed of sale, he had knowledge of the latent defect and did not disclose it and that the seller deliberately concealed it with the intention to defraud.

With the Consumer Protection Act (“CPA”) coming in to force there has been a lot of confusion as to whether the voetstoots clause may still be used in the selling of residential property. Where the seller is a “private seller” the CPA will not be applicable and voetstoots can still be used. However, where the seller is a property developer for example and sells immovable property in the ordinary course of his business, the CPA will apply and voetstoots will not be applicable. Interestingly, the CPA will still be applicable to the estate agent (should you make use of one) in his capacity as supplier of services in the ordinary course of his business as an estate agent, regardless of the seller’s status.

Unfortunately there is no hard and fast rule to determine who is responsible for what defects as each matter will depend on the facts at hand and the court’s interpretation thereof. 

The best advice to all parties concerned is to be open, honest and transparent. By disclosing all known defects in the property, sellers can rely on the protection of the voetstoots clause and purchasers can make an informed decision and even obtain an expert opinion for peace of mind.

Should you require any further information regarding any property transaction, feel free to contact Paul Delport, Maryke Landman or Jaco Fourie of Rauch Gertenbach Attorneys at 044 601 9900 or office@rgprok.co.za .
You can view our Property Cost Calculator by following the link below:
http://www.rgprok.co.za/property-calculator .