Voetstoots clause not overridden by the CPA

Most home buyers accept at face value the voetstoots clause in their property sales agreements, which states that the property is sold “as is”, ie with all its visible and invisible defects, at the date the agreement is concluded. However, some people believe that, since the passing of the Consumer Protection Act, the voetstoots clause no longer applies because the agent, as a member of the supply chain, can be held responsible for any defects which later become evident. Others go even further and say that the passing of the CPA has made the voetstoots clause redundant.

However, Wayne Albutt, Regional Sales Manager at the Rawson Property Group in the Western Cape says this is a misconception. The agent, in their view, is supposed to be an expert in the field, having full product knowledge and should therefore have identified any defects before the transaction is concluded. The Agreement of Sale is signed between two parties, the seller and the buyer. The seller is by law obliged to disclose any defects in the home of which he is aware at the time of the sale, but he cannot later be held liable for those of which he was not aware. Voetstoots is always applicable where the seller is not selling the property in the course of his normal business and the CPA does not make voetstoots illegal or invalid in these instances.

This makes pre-sale inspection essential. It is generally agreed among South African attorneys, that the purchaser should take it upon himself to inspect every aspect of the home or, better still, get a qualified inspector to do this for him. "Similarly, it is now widely accepted that the agent, although not directly in line for prosecution, should draw up a comprehensive questionnaire on the current state of the home, which he should then go through diligently with the seller. If the seller, for example, signs a comprehensive checklist in which, among other things, he states that as far as he knows the geyser or the swimming pool equipment are in working order, the agent will probably be protected from any comebacks in terms of the CPA. However, non-disclosure by the seller of a defect which he did know about, says Albutt, is a very serious offence and, if it can be proved, it will make the seller liable in law.

– Compiled from an article by bizcommunity.com/, published by http://cyberprop.com