Understanding the Voetstoots Clause in South African Property Transactions

​When buying or selling property in South Africa, the term "voetstoots" frequently appears in contracts, particularly in the Offer to Purchase. This clause has significant implications for both buyers and sellers, and understanding its scope, limitations, and protections is essential for a fair and transparent transaction.

This article explains what the voetstoots clause means, how it affects property deals, the role of patent and latent defects, and how to protect yourself as a buyer or seller.

 

What is the Voetstoots Clause?

The term "voetstoots" is comes from Roman-Dutch law and the simple meaning,   "as is." In the context of property transactions, a voetstoots clause in the Offer to Purchase means the property is sold in its current condition, including any visible or hidden defects, unless otherwise specified. The seller is generally not liable for defects the buyer discovers after the sale, provided certain conditions are met.The inclusion of the voetstoots clause has sparked significant debate in legal circles, as evidenced by numerous court cases. While it offers some protection to sellers, it does not absolve them of all responsibility, particularly in cases of deliberate concealment of defects. Buyers, meanwhile, must exercise caution to avoid unexpected repair costs or legal battles.

 

The voetstoots clause is a standard feature in most South African property contracts, but it does not provide blanket protection for sellers or leave buyers entirely vulnerable. Understanding its nuances is critical to navigating property transactions effectively.Voetstoots and the Consumer Protection Act (CPA)The Consumer Protection Act (CPA) of 2008 offers certain protections to buyers but does not apply to private property sales that include a voetstoots clause. This means that in a typical private sale (between individuals), the buyer cannot rely on the CPA to claim remedies for defects if the voetstoots clause is in place. However, the CPA does apply when purchasing property from a developer or builder, as these transactions are considered commercial and not subject to the voetstoots exemption. Buyers can request the removal of the voetstoots clause from the Offer to Purchase, but this is rare and often leads to the seller rejecting the offer. Most estate agents and conveyancers include the clause as standard practice to protect the seller.

 

The CPA offers limited protection in private property sales with a voetstoots clause. Buyers purchasing from developers or builders have stronger recourse under the CPA. 

 

Patent vs. Latent Defects

 

To fully grasp the implications of the voetstoots clause, it’s essential to understand the difference between patent and latent defects:

• Patent Defects: These are defects that are visible or easily detectable upon a reasonable inspection of the property. Examples include cracks in walls, broken windows, chipped plaster, or damaged flooring. Buyers are expected to identify these defects during a property viewing and should clarify in the Offer to Purchase who is responsible for repairs.

• Latent Defects: These are hidden defects that are not easily detectable through a cursory inspection. Examples include a leaking roof concealed by recent repairs, damp behind furniture or fresh paint, or a faulty geyser. Under common law, sellers are liable for latent defects for up to three years from the date of sale, provided the buyer can prove the seller knew or should have known about the defect.

 

Seller’s Responsibility for Latent Defects.

The voetstoots clause does not absolve sellers from liability for latent defects if they deliberately concealed them. For example, if a seller paints over a damp wall to hide water damage, they could be held accountable for repair costs or even face cancellation of the sale. However, the burden of proof lies with the buyer to demonstrate that the seller was aware (or reasonably should have been aware) of the defect and intentionally hid it.

 

Buyers must inspect properties carefully to identify patent defects, while sellers must disclose any known latent defects to avoid legal consequences.

 

The Role of the Seller’s Property Disclosure

A critical document in any property transaction is the Seller’s Property Disclosure Form, which should accompany the Offer to Purchase. This form requires the seller to list all known defects in the property, both patent and latent, to the best of their knowledge. The disclosure form promotes transparency and protects both parties by ensuring defects are documented upfront. However, discrepancies can arise between what the seller believes to be true and the actual condition of the property. For instance, a seller might genuinely be unaware of a latent defect, such as faulty plumbing hidden within walls. In such cases, the voetstoots clause may protect the seller, provided they did not conceal the issue.

 

The Seller’s Property Disclosure Form is a vital tool for transparency. Buyers should review it carefully, and sellers must be honest to avoid legal disputes.

 

The Role of Estate Agents

Estate agents, now referred to as property practitioners under the Property Practitioners Act, act as facilitators in property transactions. They are not parties to the contract but play a crucial role in ensuring the process is fair and compliant with legal standards. Under the CPA, estate agents can be held liable if their services (e.g., failing to disclose known defects or misleading buyers) violate the Act.  If you believe an estate agent has acted unprofessionally or violated the law, you should first attempt to resolve the issue directly with the agent or their agency. If the matter remains unresolved, you can escalate it to the Property Practitioners Regulatory Authority (formerly the Estate Agency Affairs Board). Note that the Property Practitioners Ombudsman, as mandated by the Property Practitioners Act, has not yet been appointed as of September 2025. Estate agents must act ethically and transparently. Buyers and sellers can seek recourse through the Property Practitioners Regulatory Authority if issues arise.

 

Protecting Yourself as a Buyer

The voetstoots clause places significant responsibility on the buyer to thoroughly investigate the property before signing the Offer to Purchase. Here are practical steps to protect yourself:

1. Conduct a Thorough Inspection: Arrange a professional home inspection by Pro Inspect Home Inspections, to obtain a comprehensive report on the property’s condition. This can uncover both patent and latent defects that might otherwise go unnoticed.

2. Review the Seller’s Disclosure Form: Cross-check the seller’s disclosure with the inspection report to ensure all defects are documented. If discrepancies arise, address them with the seller before signing.

3. Negotiate Special Conditions: Include specific guarantees in the Offer to Purchase under the “Special Conditions” section. For example, you might stipulate, “The Seller warrants that the swimming pool is not leaking as of the date of signature.” Such clauses can provide additional protection.

4. Include a Home Inspection Contingency: Negotiate a clause that allows you to withdraw from the sale or renegotiate the price if the home inspection reveals significant defects. This contingency can protect you from unexpected repair costs.

5. Request Documentation: Ask the seller to provide warranties, repair records, and maintenance documentation for items like geysers, electrical systems, or plumbing. These documents can help verify the property’s condition.

 

Buyers can mitigate risks by investing in a professional home inspection, reviewing disclosures, and negotiating clear terms in the Offer to Purchase.

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Protecting Yourself as a Seller

Sellers also have a responsibility to act in good faith when including a voetstoots clause. Here are steps to protect yourself:

1. Be Transparent: Disclose all known defects in the Seller’s Property Disclosure Form. Honesty reduces the risk of legal disputes over latent defects.

2. Provide Documentation: Supply warranties, repair invoices, and maintenance records to demonstrate that the property has been well-maintained.

3. Avoid Concealment: Do not attempt to hide defects, as this could lead to costly legal consequences, including contract cancellation or liability for repairs.

4. Work with a Reputable Estate Agent: Choose an experienced property practitioner who understands the legal implications of the voetstoots clause and can guide you through the disclosure process.

 

Sellers must disclose all known defects and provide supporting documentation to avoid liability under the voetstoots clause.

 

When Voetstoots Is Not an Excuse

While the voetstoots clause offers sellers some protection, it is not a blanket exemption from liability. The clause does not apply in the following scenarios:

• Deliberate Concealment: If the seller knowingly hides a latent defect (e.g., covering up water damage with paint), they can be held liable for repairs or damages.

• Fraud or Misrepresentation: If the seller provides false information or misleads the buyer about the property’s condition, the voetstoots clause will not protect them.

• CPA Violations in Commercial Sales: When buying from a developer or builder, the CPA overrides the voetstoots clause, and buyers have stronger legal recourse.

 

Proving that a seller knew or should have known about a latent defect can be challenging for buyers, as the burden of proof rests with them. Legal action may require evidence such as repair records, witness statements, or expert testimony.

 

The voetstoots clause does not shield sellers from liability if they conceal defects or act fraudulently. Buyers must gather evidence to challenge such misconduct.

 

Conclusion

The voetstoots clause is a cornerstone of property transactions in South Africa, balancing the interests of buyers and sellers. For buyers, it underscores the importance of due diligence, including professional inspections and careful review of disclosures. For sellers, it emphasizes the need for transparency to avoid legal disputes. By understanding the distinction between patent and latent defects, leveraging the Seller’s Property Disclosure Form, and negotiating clear terms in the Offer to Purchase, both parties can ensure a fair and transparent transaction. If you’re buying a property, consider investing in a professional home inspection to uncover potential issues. If you’re selling, disclose all known defects and provide supporting documentation to protect yourself. Should disputes arise, consult a legal professional or contact the Property Practitioners Regulatory Authority for guidance.