‘Voetstoots’ does not provide sellers with an honesty backdoor
You may believe that as a seller of a property, the voetstoots clause in an offer to purchase protects you against having to fully disclose all known defects to a buyer.
Likewise, as a buyer, you may think that you have no recourse if you agree to the voetstoots clause and discover latent defects after the sale has gone through.
Both scenarios are wrong. This is according to Lee-Ann Dobrescu, head of group business development at Hollard and co-creator of Hollard’s Home Warranty.
“Voetstoots merely means that as a seller, you are selling the property with the existing problems, so the buyer takes it ‘as is’,” said Dobrescu.
“There is one very important caveat here – as seller, you still have to fully disclose all known problems with the property in order for the buyer to make an informed decision. A voetstoots clause will not provide any legal protection if you intentionally conceal defects in bad faith and with the purpose of defrauding the buyer.”
She said since the introduction of the Consumer Protection Act (CPA), the voetstoots clause has become redundant as the CPA requires sellers and purchasers to be fair and equitable in their contractual interaction.
“The purchaser must be informed that the property is offered in a certain condition with any specific defects listed, and must expressly accept the property in that condition.”
- How can you protect yourself?
“For the seller, there’s always the pressure of the defects disclosure list and hoping that you have remembered everything, even that niggling problem that you haven’t really fully investigated the extent of.
“For buyers there is always the point where post-offer anxiety sets in and you worry about what will happen if something does go wrong and you can’t afford to fix it.
“All of this worry and hassle can be easily done away with by taking out a home warranty, which addresses the issues around defects with a professional property inspection that is coupled to an insurance policy.
“As seller and buyer, you’re both protected against the financial ramifications of any hidden defects that could emerge in the property for two years after the transfer. It also means you don’t have to go through stressful and costly litigation to recoup your losses, or defend any claims, should something untoward be lurking behind a voetstoots clause,” explained Lee-Ann.
She pointed out the cost of the home warranty is covered by the seller – all you have to do is specify it in your offer to purchase and the premium can be paid from the proceeds of the sale, much like the estate agent’s commission.
