Latent Defects Vs the Voetstoets Clause

16/01/2025 - By Tiffany Mare

What does Voetstoots mean?

The Voetstoots clause in an offer to purchase is a provision that states that the purchaser buys the property from the seller in the condition that it stands, meaning you are purchasing the property as it is with no further improvements unless agreed upon otherwise in the agreement. This clause indemnifies the seller against damages in respect of any defects that may be on the property whether patent or latent. Patent defects are the visible defects for example these may be: wall cracks, missing tiles, broken windows or gutters.

What are latent defects?

Latent defects are the defects that are not visible or apparent for example they could be structural damage, plumbing or electrical issues, damp, rusty piping or even leaking roofs. When signing an offer to purchase the seller has an obligation to disclose the defects to the purchaser that they are aware of. This leads to the mandatory disclosure form that the seller would have signed and is provided for in the offer to purchase and the purchaser would countersign in acknowledgement. This form intends to indemnify the seller from any defect claims arising later on.

So, you’ve bought a property and have noticed some structural damage. Do you still have a claim against the seller? Are they protected by the voetstoots clause?

For starters it is important to take note of the time limit you have to initiate a claim/ legal action against the seller, this is known as prescription. In a recent case in the Supreme Court of Appeal case of Stemmet and Another v Mokhethi and Another (681/2022) [2023] ZASCA 127 (04 October 2023), this type of claim and the issue of prescription were addressed.

The facts of this case: the purchaser noted structural cracks which appeared in the first year of occupation, the purchaser immediately notified their insurer of the issue of which said claim was rejected on the basis the cracks were old. Three years after becoming aware of the defect, the purchasers issued summons against the sellers claiming the damages on the property and the sellers subsequently raised a special plea of prescription. The court in this case held that prescription applied and dismissed the plaintiffs claim.

What is important to note from the above facts? Well firstly it is important to note when the purchasers became aware of the defects as this pertains to the time prescription starts to run. According to the Prescription Act, prescription starts to run from the date the party becomes aware of the defect. Accordingly, prescription runs for three years after becoming aware from said date, after which a claim will prescribe, meaning it will expire essentially. The test of prescription and onus is on the seller to prove when the purchaser became aware of the defect.

However, let’s say the seller fraudulently withheld knowledge of the defects. Failure for the seller to do so can result in the purchaser taking legal action. In a judgement handed down by the Supreme Court of Appeal in Le Roux v Zietsman and Another (330/202) [2023] ZASCA 102 (15 June 2023), the court focused on the liability of sellers when they misrepresent or fraudulently do not disclose the latent defects when selling their property.

The facts of this case: the purchaser upon inspection of the property noted a leaking roof of which the seller confirmed that the issue was fixed. Three months after the transaction the purchaser noted the entire roof was leaking subsequently leading to damage of rooms and furniture. The purchase thereafter instituted legal action against the seller. A civil engineer was called upon and noted that there were underlying structural defects, to which the purchasers alleged that this was not disclosed to them when purchasing the property. The court dealt with the main issue being that because the sellers were aware of the defect, the leaking roof, did they fraudulently fail to disclose same to the purchasers. The court held that the sellers indeed failed to disclose the defect and ordered the sellers to pay the damages the purchasers had suffered.

What is important to take note of from the facts above? The voetstoots clause in the offer to purchase was not applicable because the claim was based on the delictual liability for fraudulent non-disclosure or misrepresentation. The Seller is therefore not indemnified in the case where they failed to disclose.

Wanting to sell your property? Contact us today: stellav@dpvl.co.za