How has the Consumer Protection Act changed the concept of "Voetstoots"?
Voetstoots has always meant that a property is sold "as is" - no matter its condition and without any guarantees. With a voetstoots clause in the agreement, the buyer was protected only where it could be proved that he had been cheated by the seller in that the seller knew about defects and deceptively kept quiet about them.
While Section 55 of the Consumer Protection Act stipulates that every consumer "has the right to receive goods that are appropriate to the purpose for which they are bought and that they should be of good quality, in working order and without defect", the Act itself does provide adequate protection for home buyers. This is because private "once-off" sellers are excluded from the provisions of the Act. The Act only covers those who sell "in the normal course of their business". This includes developers, investors and estate agents.
For this reason most estate agents' agreements still retain a voetstoots clause. Most prospective buyers are unaware that they sign many of their rights away when they sign the Offer to Purchase agreement, which includes a voetstoots clause.
There are ways that buyers can protect themselves from the perils of buying a house with undisclosed defects, for example, they can:
- insert a conditional clause in the Offer to Purchase in terms of which the offer is subject to the buyer obtaining a favourable home inspection report.
- tell the agent that no home will be considered which does not have an inspection report provided, at the seller's expense, by a reputable home inspection company.
- simply delete the voetstoots clause from the agent's offer to purchase document. This would force sellers and their agents to ensure transparency and upfront disclosure of all significant defects. By removing the voetstoots clause from the agreement, the buyer effectively strips away any legal protection that the private seller may have enjoyed if the property was later found to be defective in any material way.