A recent Supreme Court of Appeal decision in the case Odendaal v Ferraris has strengthened the position of the property seller when challenged on the voetstoots clause, says Grant Gunston, senior director of the Cape firm of attorneys and conveyancers Grant Gunston Inc.

In this decision, the judge ruled that a buyer taking the seller to task for non-disclosure of a latent defect has to be able to show not only that the seller was aware of the defect but that he or she deliberately avoided disclosing it with the intention of defrauding the buyer. This, said Gunston, underlines and reinforces the long held understanding that the voetstoots clause provides strong protection for sellers.

“In this particular case, the buyer sought compensation for the fact that certain alterations had been carried out without the plans being approved by the municipality. However, notwithstanding non-disclosure of this fact to the buyer, the seller was exonerated because the court held that she had not withheld the information with the intention to defraud the purchaser. The ruling once again places a greater onus on the buyer to investigate the property thoroughly,” said Gunston.

Estate agents and conveyancers, he added, often do include in their deeds of sale a clause to the effect that the seller guarantees that all plans have been approved. This, he says, may well become a more regular practice as a result of the Odendaal v Ferraris court ruling.

“Voetstoots cases crop up again and again in SA legal history,” said Gunston. “There will be people who regard this ruling as too soft on the seller – but it does give a clear warning to buyers and their lawyers to check the conditions of a prospective property purchase thoroughly and if they are concerned add clauses to the deed of sale to protect the buyer.”

Article by: www.grantgunston.co.za