What Is Voetstoots Sale Agreement

Haviside v Heydricks and Another 2014 (1) SA 235 (KZP) are an example of what has enabled the seller to successfully rely on the availability of Voetstoots. In this case, homebuyers found that there was no planning for a garage on the land and that, as a result, the structure was illegal. The court found that the lack of legal authorization, such as construction plans, is a latent defect. However, in this case, the seller was not aware of the latent defect and successfully invoked the Voetstoots clause. This decision reminds us that the seller`s knowledge is important because the buyer must prove that the seller was aware of the defect and deliberately concealed it with the intent of the fraud. What should buyers do before entering into a sales contract? Sellers are legally required to disclose the latent property defects they are aware of. In order for the Voetstoots clause to be repealed, buyers must prove that the sellers were aware of the latent defects and deliberately concealed them with the intention of misleading the buyers. While the disclosure document is not a legal requirement, it provides a degree of protection for both buyers and sellers. Subsequently, sellers cannot be criticized for not disclosing to buyers certain latent defects at the time of the closing of the sale. On the other hand, buyers have a good idea of what should be replaced or repaired and whether there could be expensive defective items that could determine whether or not they are offering the property at the market price. The new Consumer Protection Act means that the Voetstoots clause will have little power to save a dishonest seller after March 2011.

The seller can no longer hide behind this clause to save himself from subsequent buyer claims if he is aware of the defects. As Sipho Tlelane, Director of Legal Aid and Enforcement at the Ministry of Trade and Industry (DTI), says, “the concept of Voetstoots will no longer be applicable.” The CPA solves this problem by providing an “implicit guarantee of quality” to any transaction within its scope. This means that all goods will be sold with the hope that they are of good quality, in good condition and without defects. Indeed, the seller of real estate is responsible for a latent defect, regardless of the Voetstoots clause, if the seller was aware of the defect of the land for sale and he had not informed the potential buyer of these defects. This omission is almost akin to fraud. Under the Common Law, a seller is only liable if he was aware of a defect and does not disclose it to the buyer. Most sales contracts, especially real estate, contain a Voetstoots clause that frees the seller from liability in the event of patent defects or latent defects that the buyer may later notice when taking possession of the property or goods. However, there are general exceptions that allow the buyer to terminate the contract or sue the seller for a reduction in the sale price.

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