The necessity of recognizing the broader application of “voetstoots” is critical for property practitioners, purchasers, and sellers alike.

Voetstoots Meaning - What is Meant by a “Voetstoots” Clause in an Agreement of Sale?

The majority of sale agreements for immovable property include a provision in which the purchaser affirms to purchase the property “voetstoots”. The voetstoots clause is a common law concept which states that the purchaser buys the property from the seller “as is”, liberating the seller from any obligations for patent (visible) or latent (hidden) flaws, which are often more difficult to find by reasonable scrutiny.

If incorporated as a condition in the agreement of sale, it shields the seller from future claims by the purchaser for unknown defects, assuming the seller was not aware of the issues concerned.  However, should a seller intentionally conceal a flaw, he/she will be unable to rely on the voetstoots clause.

Usually, the term has been connected to the physical condition of the property, but South African courts have subsequently expanded the scope and application of voetstoots to accommodate more than just the physical attributes of a property.

Application of the Voetstoots Clause

An example of where a seller could successfully rely on this clause was seen in Le Roux v Zeitsman and Another.  In this case, the purchaser endured expenses as a result of patrimonial loss in fixing the property’s roof, as well as a loss of revenue since the property could not be utilized for its intended purpose during the repairs being made thereto.
The purchaser’s claims, based on the fraudulent non-disclosure of such attributes, included, but were not limited to, the following:  

1. The property’s roof exhibited a defect, namely, a leak;
2. The seller was aware of the defect;
3. The seller was placed under a legal duty to make disclosure of such a defect, but failed/neglected to do so.

Based on the evidence provided, it was determined that the seller did in fact make disclosure of such a defect but asserted that it had been repaired and no longer leaked. The court ruled that the acknowledgement of major leakage problems within the roof was important, and the seller was legally required to disclose this to the purchaser. Taking into account the circumstances surrounding the seller’s failure to reveal the full degree of the leakage, the court ruled that such information was suppressed to secure the sale and benefit the seller. As such, the seller could not rely on the protection of a voetstoots clause where he perpetrated a fraudulent non-disclosure.

It goes without saying that proving whether a seller was aware of a latent fault in a property and intentionally neglected to disclose it at the time of sale can be rather difficult to accomplish. Consequently, the parties ought to sign a disclosure form identifying all of the defects on the property.  The seller must sign the declaration certifying that the information included in the form represents a complete and accurate disclosure.  In the event of a dispute emerging as a consequence of latent faults on the property, the parties may rely on this disclosure form.

A business which buys and sells property in its normal course of business, such as a property developer, may not insert a voetstoots clause in an agreement of sale with a consumer.  The Consumer Protection Act (No. 68 of 2008) establishes a legislative responsibility of disclosure,  therefore, a property developer cannot disclaim accountability for faults using a voetstoots clause.

Concluding remarks

The above-mentioned expansion of voetstoots emphasizes the significance of due diligence and openness in property transactions.  Although it is difficult to establish the inapplicability of voetstoots against a seller, sellers who intentionally conceal known latent faults can be held liable.  To avoid needless disagreements, property practitioners, purchasers, sellers, and all parties engaged in property transactions should thoroughly comprehend the broader consequences of voetstoots.