When navigating the sale or purchase of a property, one legal term that frequently arises is the voetstoots clause. Though it may seem complex, its implications are fairly straightforward and crucial for both parties to understand.

In essence, voetstoots means the property is sold “as is”, with all its visible and hidden flaws at the time of the sale. This means the buyer accepts the property in the condition it was in when the agreement was signed.

To properly grasp this clause, it’s important to distinguish between two types of defects:

• Patent defects are flaws that can be easily observed through a basic inspection, such as cracked tiles, broken windows, or damaged fixtures.
• Latent defects, on the other hand, are concealed and may not become apparent until after the transaction examples include internal plumbing faults or structural leaks hidden within walls or beneath floors.

In the matter of Odendaal v Ferraris (2009), the court emphasised that the voetstoots clause serves to protect a seller from liability for defects they were unaware of at the time of the sale.

However, this protection is not absolute. In Le Roux v Zietsman (2021), the court clarified that if a seller is aware of a latent defect and deliberately fails to disclose it or actively conceals it, the clause will not shield them from legal responsibility. Moreover, any misrepresentation of the property’s condition by the seller negates the protection offered by the voetstoots clause.

In other words, if a purchaser can demonstrate that the seller knew about a defect and withheld this information to finalise the deal, the clause becomes ineffective, and the seller may be held liable.

In an effort to enhance consumer protection and encourage honesty in property transactions, the Property Practitioners Act 22 of 2019 introduced a mandatory property disclosure form. Sellers are now legally required to complete this form, listing any known issues or defects. This form must be signed and attached to the sale agreement, forming an integral part of the contract.

Given the importance of this clause, both sellers and buyers should proceed with care. Sellers are advised to disclose all known issues in writing, ensuring transparency and limiting future disputes. Buyers, in turn, should conduct a thorough physical inspection and seek clarification on any questionable aspects of the property before signing.