THE GUNSTONS BLOG

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Know your contract! How the voetstoots clause works

Our experience over the years in property conveyancing, particularly residential property, has shown that many buyers and sellers have only the vaguest idea of how the voetstoots clause works.

It has also shown that in the sometimes difficult circumstances which arise when defects are discovered, an experienced estate agent and conveyancer, often working together, can usually help negotiate a satisfactory conclusion even when the sellers and buyers are, as often is the case, feeling considerable stress.

How the voetstoots clause works

how the voetstoots clause worksIt is standard for a voetstoots clause to be inserted into a sale agreement. Selling “voetstoots” means selling the property “as it stands”. This puts the burden on the purchaser if an unexpected defect is later discovered. A recent court decision held that for the voetstoots clause not to apply the purchaser had to prove that the seller not only knew of the latent defects and did not disclose them but deliberately concealed them with the intention to defraud the purchaser.

A strong burden is placed on the potential buyer to inspect the property thoroughly, to look for defects (for example, for leak or damp marks).

Sometimes the seller, especially if they have owned the property for some time, will have lived with the defect for so long that they are no longer aware of it. In that situation it would not be possible to accuse them of hiding it from the buyer.

Very often, the defects will become apparent in the period between the sale document being signed and the transfer of the property and in our experience the amounts involved to fix them are not huge.

How to resolve voetstoots issues

In these circumstances, we have found that it may not pay to litigate not only because litigation can be expensive but also because the delay will be highly inconvenient. The conveyancer is, of course, acting on the seller’s behalf and it is his duty to protect his interests but a good lawyer can often help resolve the matter by amicable agreement, which is usually in both parties’ interests.

Non-disclosure of a latent defect is a serious matter, but it can be hard to prove that the seller knew about it. The good news is that in our experience most sellers are open and, if they did not draw the buyer’s attention to the problem, the reason is that they probably did not know or had forgotten about it.

If you need help in this regard, please do not hesitate to contact us at info@gunstons.com.

Images courtesy of Stuart Miles and digitalart at FreeDigitalPhotos.net.

Grant Gunston

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