PROFESSIONAL PROPERTY INSPECTIONS

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Be careful of the "Voetstoots" clause

When buying a property, the buyer may be asked to sign a contract which includes a Voetstoots clause, meaning that the house is sold “as is”. The buyer may also be asked to sign a “Disclaimer” document from the estate agent.

Neither of these documents should be signed as they give away the buyer’s rights to claim compensation at a later date – up to 6 months – for any patent or latent defects.

A patent defect is normally an easily identified visual defect e.g. broken or cracked windows, broken or cracked wall or floor tiles.
A latent defect is normally a defect not easily identified, for example; damage to roof trusses, rising or weather damp, or structural problems that require expertise to recognize.

For a buyer to be protected, any contract to purchase a property, regardless of the supplier (estate agent, private seller or auction property) must contain the clause “Subject to a satisfactory Home Inspection Report”.

The Consumer Protection Council will allow a “Voetstoot” or “As Is” clause to be added to any sales agreement in regards to a Private Seller that is not using the services of a real estate agent or a property that is being auctioned.

In order to find latent and patent defects it is necessary for the buyer to employ the services of a professional home inspector. The home inspector typically performs the inspection before the final signature on the Offer to Purchase. This will allow the buyer time to gather estimates for the cost of any necessary repairs or corrections, to negotiate to have any defects corrected at the seller’s cost, or to negotiate with the buyer for a reduction in the price of the home.

In short, the Voetstoots clause states that if a home seller is not aware of a problem with the home, they cannot be held responsible for a failure caused by that problem after the home is sold.

This means that any problems for which the buyer wants to negotiate with the seller for the cost of correction must be identified before the final signature on the Offer to Purchase. By signing a Voetstoots clause, the buyer gives up all rights to future compensation from the seller no matter how serious the defect.

EXAMPLE:

A home has a major foundation defect that requires expertise to recognize and will cost 160,000 rand to correct. The buyer does not hire a qualified home inspector to perform an inspection. Neither the seller or the buyer has the expertise to recognize the problem. The Offer to Purchase is signed and the transaction is concluded. Two months later, heavy rains fall, the defect becomes apparent and must be repaired.

If the buyer has signed a Voetstoots clause, the buyer will have to pay the cost for repair. If the buyer has refused to sign the Voetstoots clause and Disclaimer, they will be able to institute legal action against the seller for compensation covering  part or all of the cost for repair.