Buyer, beware that voetstoots clause

A recent Supreme Court judgment has once again underlined the risks involved in buying a property voetstoots, or “as is”.

The case involved a buyer who instructed his lawyer to delay transfer when he discovered several serious defects in the property, and a seller whose application to then evict this buyer had been denied by the High Court but was granted on appeal.

And that, says RealNet property group director Jan Davel, once again demonstrated the serious danger inherent in buying a property without meticulously inspecting it.

“Although the buyer in this case did inspect the property, he could not gain access to an outbuilding. The agent assured him it was in perfect condition but after the transaction he discovered, among other defects, that alterations had been done without municipal approval.

“The trouble is that if a dispute arises after in a voetstoots sale, the onus is on the buyer to prove not only that the seller knew of a latent defect, but also that the seller deliberately concealed that defect with the intention of defrauding the buyer. And this is notoriously difficult to prove, which means a buyer will have little hope of having defects rectified by the seller,” he says.

Davel advises homebuyers never to buy property unseen and to insist on inspecting every aspect of the property. “In cases where sections of the property are locked on inspection, as in the above case, prospective buyers are advised to make arrangements to return at a time when the section will be open for inspection.

“It is a small thing to re-inspect a property when weighed against the possible complications of latent defects that are only discovered after the transaction has been concluded,” he says. “Prospective buyers who have any reservations would do well to call in the help of professionals to inspect the property.”

In any event, buyers should not feel pressured to sign a contract containing a voetstoots clause, he says. “You don’t have to sign it and can cross it out on the sales agreement. Sellers who object may very well have something to hide – a sure sign to reconsider or even walk away from the deal.”

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