Defects to Property picked by Buyer after occupation

Legal aspects of the voetstoots clause, patent and latent defects, and the position of the real estate agent.

As a Real Estate Agent, we are primarily responsible to facilitate the transaction between a willing buyer and seller. Our role involves assisting with the negotiation, documentation, and coordination of the sale process. It's important to ensure that both parties are well-informed and understand the terms and conditions of the sale agreement. Additionally, as an agent, we may provide guidance and advice to your clients based on your knowledge and expertise in the real estate market.

The rights of a buyer to claim for defects after signing, whether prior to or after the date of registration of the property.

WHAT IS MEANT WITH VOETSTOOTS-CLAUSE

• Our case law stipulates that the obligation is in the purchaser to properly inspect the property prior to the signing of the contract and must ensure that all defects which he/she wishes the seller to repair must be listed in the special conditions of the sale agreement. There is no obligation on the estate agent to do the inspection on behalf of the purchaser.
• If a contract does not make provision for the repair of defects, the Conveyancer is not obligated to ensure that the defects are completed during or after the registration process.
• If the property is sold as is (voetstoots), the purchaser needs to proof in a court of law that the seller had the obligation to effect the repair of defects.  
• The Conveyancer may not delay the registration and is obligated to proceed with registration unless a court order to the contrary is received. A buyer will always have the court to assist if he can proof his claim that he is entitled to repairs. The buyer has the onus to proof he is entitled thereto.
• The voetstoots clause means that the property is sold "as is" or "as it stands" in whatever condition it is, warts and all. Accordingly, the purchaser purchases the property with all the patent and latent defects. It is an essential term contained in all sale agreement of property purchased second hand which may well have deteriorated through normal wear and tear, or which may be defective to some extent as a result of its constant use or through natural decay over a period of time.
• Its basic purpose is to shield the seller from any action by the buyer, on discovering any defects he was not aware of when purchasing the property, from doing anything to jeopardise the actual sale contract.
• Simply put -patent defects refer to defects that are visible to the naked eye and don't require expert inspection, whereas latent defects refer to defects that one would not normally discover with a normal inspection e.g., a leaking roof. The purchaser is always liable to repair patent defects themselves unless the contract provides otherwise.
• Every sale agreement of a normal residential property with a house and its usual outbuildings will contain a voetstoots clause. This in effect means that the Seller is free from any liability for patent and/or latent defects, which the Buyer may later find when taking occupation of the property. It is important to know what the effect of such a clause is and to what extent it protects the Seller.

THE BUYER DOES NOT HAVE THE RIGHT TO MAKE A "SNAG LIST" AND DEMAND REPAIRS OF DEFECTS NOT LISTED UNDER THE SPECIAL CONDITIONS TO BE REPAIRED IN THE SALE AGREEMENT!

• Patent Defects are flaws that will be clearly visible on a normal inspection of a property and include wall cracks, sagging gutters, broken windows, missing tiles, and the like. It is a buyer's duty to acquaint himself with the general condition of a property on purchasing it and he cannot later claim he did not see such defects. The test is an objective one, namely what could have been seen on the original inspection of the property.
• Latent Defects are faults that are not immediately obvious and are hidden from view. These include faulty pool pumps and geysers, rusted internal pipes, leaking roofs (except where strain marks make the leak obvious) and defects that have been concealed such as dampness behind a cabinet. The test is what could not normally be seen on inspection. The courts regard municipal plans as part of latent defects. Therefore, unless stipulated in the sale agreement to be provided by the seller, the buyer must obtain approved plans for all buildings, at his/her own cost.
• In terms of numerous South African court cases, a seller is only excused from liability for latent defects where he himself was not aware of the problem at the time of the sale. If a seller knowingly conceals a latent defect, he will be liable to the buyer for the cost of its repair. In such a case he cannot rely on any clause in the original contract making no warranties as to the condition of the property.
• A seller will thus be liable for all cracks or dampness and other similar faults deliberately hidden from view. He is also responsible for latent defects which he is presumed to have been aware of, such as any appliance, which is not functioning properly. Examples are geysers delivering only lukewarm water, defective electrical points, and the like.
• A voetstoots clause completely liberates a Seller from any liability for patent defects.
• The buyer may only claim for repairs through his own appointed attorney, at his own cost. The buyer has to proof his/her claim in a court of law, the court can claim from the seller to pay for his cost on a party and party scale, which will cover approximately 70% of his cost. Pending the legal claim, the buyer is liable to pay his/her attorney for each attendance and consultation.
• Most attorneys charge approximately R1500 per hour. Due to the high legal cost, it is advisable, in cases where the defect claim is low, to rather use the Small Claims Court, which is free of charge ( no party may have a legal representative). Kindly note, any claim is limited to R20 000.

If you still decide to proceed with a claim against the seller for any defects or damages you believe are not covered by the voetstoots clause, it is important to gather evidence and quantify your losses. Here are some steps you can take:

• Document the Defects: Make a detailed list of the defects you have discovered and document them with photographs or videos. Provide as much information as possible, including the nature of the defect, its location, and any impact it has on the property.
• Obtain Expert Opinions: If necessary, consult with professionals or experts in relevant fields (e.g., building inspectors, contractors) to assess the defects and provide their expert opinions. Their evaluations can support your claim by verifying that the defects are not patent and should not have been reasonably discovered during a regular inspection.
• Quantify Losses: Obtain detailed quotes or estimates from reputable contractors or service providers for the repair or rectification of each defect. This will help you establish the financial value of your claim and the costs associated with the necessary repairs.

With all the information to hand, consult with an Attorney, who specialises in both property law and litigation. Provide him with all the documentation, including the list of defects, supporting evidence, and repair quotes. He will then be in a better position to assess the merits of your case and advise you on the best course of action. He will advise you on whether or not you have a viable legal case and will assist in drafting and filing the necessary legal documents to pursue your claim against the seller. He will guide you through the legal process, representing your interests and seeking appropriate remedies for the damages you have suffered.