So says Harcourts Africa CEO Martin Schultheiss, who notes: “This clause – which basically states that the property is being bought ‘as is’ - is the biggest potential pitfall for buyers in private transactions where there is no agent involved.

“An untrained eye can easily overlook defects to the property that will require expensive repairs at a later stage, and thus fail to adjust the amount offered for the property accordingly.

“Agents, however, are generally more experienced at spotting potential problems, and unlike sellers, are obliged in terms of their code of conduct to disclose any known defects to potential buyers.”

Indeed, he says, although agents usually act on behalf of the sellers in property transactions, their code binds them to also protect the interests of buyers throughout the transaction – and thus to ensure that sales contracts are not one-sided or full of loopholes.

“And this has become even more important since a recent Supreme Court of Appeal decision that strengthens the position of sellers who might be challenged on the “voetstoots” clause.

“In this case – Odendaal v Ferraris - the judge ruled that a property buyer who wants to make a claim against a seller for non-disclosure of a defect now has to be able to show not only that the seller was aware of the defect, but also that there was deliberate non-disclosure with the intention to defraud the buyer.”

This, says Schultheiss, clearly underlines the need for buyers in property transactions to have the protection that comes from dealing with a professional agent.

“Buyers who consider entering into private sales should thus weigh up the perceived benefits very carefully. They should ask themselves whether they really will save money and whether it is worth running the risk of non-disclosure that could prove very costly in the future.”

Article by: www.harcourts.co.za