Selling your property?

Here’s what you should disclose and how the ‘voetstoots clause’ affects you

As to what needs to be disclosed when selling your property, the first aspect to look at, is what are regarded as defects. In terms of South African law, two types of defects relate to property, being latent and patent defects.

A latent defect is something that is not obvious or easily discovered on reasonable inspection and may not be known to the seller. A patent defect on the other hand, is one that is not hidden and quite easily discovered upon reasonable inspection.

Under common law, a buyer may recover any damages suffered, including the cost of repairs, of a defect if it is evident that the fault existed in the property at the time of purchase. However, the ‘voetstoots clause’, is a common law provision (usually inserted into the purchase agreement) that means that the buyer agrees to buy the property ‘as is’.

The ‘voetstoots clause’ protects the seller against legal recourse for any defect which the buyer could reasonably have observed before the sale (patent defects) and which the seller could reasonably not have known about prior to the sale (latent defects).

While the Consumer Protection Act (CPA) does offer protection to consumers, it only applies if the seller regularly sells property and so would exclude most sellers. The CPA does apply to estate agents, but the buyer would only have a claim if he could prove that the agent was aware of the fault and intentionally withheld the information.

For the seller, the best advice and something that a credible real estate agent will insist on, is full disclosure of any defects and other restrictive conditions. These would include:

Defects – this would especially be relevant to the structural integrity of the property, property foundations, use of supporting lintels, plumbing and electrical issues, compliance with building regulations, building plans, damp and water leaks etc. are some of the issues that must be disclosed. Wherever possible, it is advisable that any repairs be undertaken by the seller prior to putting the property on the market.

Restrictive conditions – any restrictive conditions attached to the title deed should also be disclosed. These could include height restriction (i.e. no higher than two floors), no subdivision permitted, only 50% of erf may be covered, business use restrictions etc.

Sectional title restrictions – most sectional title complexes have restrictions about a range of matters that will affect your property. These could range from more complex renovation features to matters as simple as no laundry to be visible. It is therefore vital that you ensure that your sales agent is fully aware of any such regulations.

It has become quite trendy for buyers to first undertake a thorough inspection of the property and there are various service providers that offer this. A credible estate agent will also assist with this.