‘VOETSTOOTS’ VS LATENT & PATENT DEFECTS
Sellers must be careful not to abuse the ‘voetstoots’-clause in agreements of sale of immovable property.
There is a duty on the Seller to be transparent and disclose all latent (hidden) defects in the property being sold. Failure to do so will entitle the Purchaser to institute a claim of damages and compensation after date of registration.
Firstly, we need to establish the difference between Latent and Patent defects.
A LATENT DEFECT is a fault in the property that could not have been discovered by a reasonable inspection before the sale. In other words, it covers defects hidden by the Seller. As such, the law expects that buyers will protect themselves in the sales agreement against defects they cannot possibly be expected to assess prior to purchase. The term “latent defect” is often used as part of the guarantee clauses in a sales agreement so that the buyer can recover damages from the seller if defects turn up in the property after date of registration. For example, the seller may be required to pay for repairs of any such damage.
If a latent defect is discovered, there is often a presumption against the seller when a claim is made in misrepresentation that the seller knew about the latent defect. As such, the seller is required to show that he or she could not possibly have known of the defect, rather than the buyer having to show that the seller did know about the defect. However, if it can be shown the seller could not have known about the defect (and was not wilfully blind to the possibility) then the buyer’s claim will not succeed.
A PATENT DEFECT is a defect that could have been discovered by the Purchaser by doing a thorough inspection of the property. The buyer cannot possibly succeed in a claim against the seller unless the seller actively took steps to hide the defect from a normal inspection. An example of a patent defect will be visible damp or a crack in the wall that can be seen through the paint. It is a prospective Purchaser’s duty to ask the Sellers about such defects and get guarantees/disclosure in writing.
A clear example can be taken from the ruling by the Supreme Court of Appeal in the matter of Banda & Fynn vs Van der Spuy (781/2011/  ZASCA (22 March 2013). In this case the Sellers failed to disclose the true extent of the damage to the property’s roof. The Sellers were aware of the roof leak and had some repairs done to it to try fix the problem. Roof specialist reported that the cause of the leak were twofold. Firstly, the wooden roof trusses were inadequate to properly support the weight of the thatch roof, which resulted in gradual sagging of the roof. Secondly, the roof pitch was only 35° and not 45° as it should be. The inadequate pitch resulted in the water running into the roof, which caused the thatch to rot more quickly. The Purchasers discovered the defect after registration was effected and were successful with a claim for damages against the Sellers. The Sellers had to replace the roof, as the problem could not be permanently resolved by further repairs. The Court ruled that even though the Sellers could not be aware of the incorrect pitch, they were still held liable because they were aware of the inadequate repairs.
In all cases, where a seller actively misrepresents the condition of the property, such as by taking steps to make an inspection impossible or by lying about problems when directly asked, the buyer will almost always succeed unless it can be shown that the buyer was independently aware of the defect and completed the transaction nevertheless.
There is a mutual obligation on the Seller and Purchaser of immovable property, to be transparent and declare all defects. Sellers should be honest regarding latent defects and Purchasers should be vigilant, when viewing a property, for any patent defects.
Wietz Viljoen, WVA INC.
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.