It is vital for sellers to know that they need to disclose all defects in a property and that the ‘voetstoots’ (‘as is’) clause does not mean that they cannot be held liable should the buyer later discover a defect that should have been disclosed.
According to SA law, there are two types of defects, namely latent and patent defects. A latent defect is generally a fault which cannot easily be seen by a reasonable inspection while a patent defect would be something that is easily seen on a reasonable inspection.
Latent defects would for example be aspects such as structural faults, a leaking roof or a faulty geyser. It is vital for the seller to check the property for any such defects and to disclose this to the agent and buyer.
Patent defects are generally those flaws which would be visible with the naked eye such as wall cracks, damp, a broken or cracked window and so on. It is always advisable that the seller gets any repairs done before the property is put on the market to ensure that there are no issues that the buyer could use to knock down the price.
Buyers on the other hand, should always check the property carefully and even consider having an inspection done by a professional before putting pen to paper. The Consumer Protection Act (CPA) does not protect a buyer in the case of an ordinary property sale and only becomes applicable where the seller is a developer or a speculator whose ordinary course of business is to sell properties.
In instances where the CPA does not apply, the ‘voetstoots’ clause can protect the seller, but only to a certain degree. If the seller is/was aware of a defect and failed to disclose it, the seller’s behaviour could constitute fraudulent misrepresentation and the buyer would have legal recourse against the seller.
According to common law, if a buyer becomes aware of a fault which would have existed at the time of buying the property, he/she may recover the damages suffered which would include the cost of repairing the defect.
While it is not a legal requirement to record the known defects in the sales agreement, it can be vital to have a record of defects expressly disclosed to the buyer. This may protect the seller later on if an issue arises around the defect, but not if it was misrepresented in any way. Honest disclosure is always advised.