As with all things in life, it is much easier to get things done and sorted out when you have some knowledge on the subject, not to mention having a firm foot to stand on in case things do go awry.
Inspection Before Purchase
Home inspections are standard practice in the United Kingdom and United States, but not in South Africa. Therefore you are purchasing the property without any guarantees, and can not hold the seller liable for any hidden defects regarding the property, also known as the "voetstoots clause".
You are within your rights, and it would be in your own best interest however to have a home inspection done before purchasing any property. The costs involved might vary between R1500 and R3000, depending on the size of the property, but any potential problems will be identified. Typically, you will receive a report that includes detailed information about structural cracks, dampness, electrical circuits, the geyser and plumbing system, visible foundations and roof construction.
The Voetstoots Clause
The voetstoots clause plays a major role in buying and selling property in South Africa.
The term "voetstoots" effectively describes what this clause entails: buying or selling something as is, no matter its condition. This clause works well to protect the rights of the seller.
As a buyer, however, your rights in terms of this clause are quite limited. However, there are two exceptions that give buyers legal power to take action either for a reduction in selling price or to cancel the contract altogether.
The first exception applies if the seller was aware of defects to the property, but did not disclose all the defects to the purchaser. The second applies when fraudulent or innocent materials were misrepresented. The latter is only valid if the latent defects were to such an extent that, had the purchaser been aware of them, they would not have bought the property in the first place.
Patent and Latent Defects
The voetstoots clause refers to patent and latent defects, so in order to grasp the voetstoots clause fully, the differences need to be understood.
Patent defects should be clearly visible upon an inspection by a layman. Patent defects include visible wall cracks, missing tiles, damage to the roof or roof tiles, sagging gutters, broken windows and other defects to this effect. In the occurrence of patent defects, the buyer cannot claim post purchase that he was unaware of the defects. It would be in the buyer’s best interest to familiarise themselves with the general condition of the property and negotiate any changes needing to be made before finalising the purchase.
Latent defects are faults which cannot be seen by the naked eye. For this reason it is well advised to have a formal inspection of the property done before purchasing it. By having a proper inspection done by an expert, the buyer will be able to ascertain possible defects such as rising damp or dampness behind closets, faulty geysers, rusted internal pipes, leaking roofs and any other hidden faults.
Latent defects are not apparent and the voetstoots clause holds the seller liable to reveal any such defects in their knowledge. In cases where the seller knew of these defects but did not reveal them, the seller may be forced to refund a part of the purchase price or even accept cancellation of the purchase altogether. This depends on the nature or degree of the latent defects.
The only time when a seller may be excused from making compensation for latent defects is if they were unaware of the defects at the time of sale.
Late Discovery of Defects
This can be a tricky situation, depending entirely on the nature of the defect.
A leaky roof may have appeared fine at the time of purchase, but because of the rainy season six months later, the defect will only show then. If it can be proven that the seller knew of this defect at the time of sale and did not disclose this fact, he or she will be held liable for the repair costs.
In cases where the seller cannot be traced, the estate agent cannot be held responsible.
This is a mistake far too many buyers make! The estate agent’s role is only to inspect patent defects and enquire from the seller in terms of any latent defects. It is only once the buyer has been informed of the defects and the purchase made that the buyer’s recourse is valid against the seller.
Author Bio:
PropertyGenie is a leading online estate agency where you can find your ideal South African property. Should you require information about your rights or have any legal queries, contact PropertyGenie today.
