There is a very common misconception when people enter into agreements when purchasing residential property thinking that Voetstoets clauses are not applicable because of the enactment of the Consumer Protection Act (“CPA”).
A Voetstoets clause, meaning ‘as it stands’ is often included as a standard clause in most contracts which involve the sale of property for the purposes of protecting the seller from liability for any defects whether patent or latent.
The CPA protects consumers against buying defective goods (which definition includes property), however the Act only applies to transactions entered into in the ordinary course of business meaning that unless the seller is a property trader who sold the property in question as part of his business, the CPA and its remedies will not apply.
This means that notwithstanding the CPA, buyers still need to beware and inspect the properties they intend purchasing. The normal remedies pertaining to Voetstoets are applicable to matters where sellers have failed to disclose defects where they had a legal duty to do so.
In the case Van der Merwe v Meads, the court held that in order for a purchaser to be successful in claims where defects have been discovered by a purchaser after conclusion of an agreement, a purchaser would have to prove firstly that the defects were in fact latent, secondly, that the seller was aware of same at the time of the sale, and, thirdly that the seller had a duty to disclose the defects and his failure to do so resulted in the conclusion of the contract, alternatively, the seller fraudulently misrepresented that there were no defects which representation resulted in the conclusion of the contract. In Knight v Trolip the court held that should a seller have purposely concealed the defects it is tantamount to fraud.
In light of the above paragraph a contract may be cancelled or the purchaser placed into the same position that he would have been should the property not have the defects. The court will not come to the assistance of a dishonest seller.
It must be noted that the onus of proof lies on the purchaser who will need to show evidence that the defects were in fact latent and that the seller knew about these defects and failed to disclose them. A court will generally apply the standard of a ‘reasonable man’ to both the seller and purchaser.
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