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5 Mar 2015

We have all heard the term “voetstoots”, which, to all intents and purposes, means “as is”.

To spell it out, when you buy a property you are buying it “warts and all”. This doesn’t of course mean that a seller can fraudulently hide defects from a buyer and then use the voetstootsclause as a defence.
The Consumer Protection Act (CPA) has muddied the waters a little. Many buyers now believe that the voetstoots clause has been replaced and that estate agents are solely responsible for ensuring that the home is in tip-top shape. It’s a little complicated and although, as things stand, an agent can be held liable if it is found that he hasn’t disclosed all the defects in the home, this hasn’t yet been tested in a court of law. Given that estate agents are unlikely to have the skills needed to identify every potential problem in the homes that they sell, it’s highly improbable that a judge is going to hold them liable for something that is, for the best part, completely out of their control.

And so?
So where does this leave the buyer? Well, basically in the same position as before the CPA came into effect – reliant on the voetstoots cause.
Many hundreds of properties are sold in South Africa each day and in most cases the buyers and sellers are happy with the outcome. There are of course exceptions and, although there are undoubtedly buyers who believe they have been ripped off by unscrupulous sellers, given the sheer number of transactions concluded, these are far less common than most believe.
That said, it is always recommended that buyers go all out to ensure that they are indeed getting what they are paying for, by engaging a home inspector before signing the sales agreement. While this is going to cost the buyer a bit of extra money, it could end up saving thousands if the inspection reveals defects that are going to be costly to rectify.

It really does make sense!
There are buyers (usually those who haven't had their fingers burnt before) who argue that they shouldn’t have to pay for something that may, if the problems are serious enough, lead to them changing their minds about buying the home. While this makes sense to some degree, should defects come to light, having an inspection report does afford a buyer the opportunity to attempt to renegotiate the selling price. It puts the seller in a bit of a spot if he refuses to rethink his price as, according to the voetstoots clause, he will be obliged to divulge the faults revealed in the inspector’s report to future interested parties. Think about it – he can hardly claim ignorance of a particular defect if it is laid out in black and white in the inspector’s report
Logically, the best decision anyone can make before investing in a home that is not a new build is to have the property inspected to ensure that everything is above board and that the seller isn't trying to pull the wool over their unsuspecting eyes.