You have finally found your dream home in the right neighbourhood, took the plunge and signed the deed of sale. You cannot wait to move in, but upon inspection of the building plans, you find out that the cosy granny flat that you intended to use as an art studio is not on the building plan. All too often in circumstances such as these, the Purchaser will simply be answered by the Seller with a raised defence of the ‘voetstoots’ clause.
(Sidenote: The word “Voetstoots” is Dutch in origin and means “sold as is” or “sold as it stands”. This legal term is for the protection of the Seller against liability for patent or latent defects. A patent defect is one which is obvious and easily seen with reasonable inspection, like a broken window or crack in the wall. A latent defect is one which is hidden and not easily seen, like a leaking roof or hidden damp.)
Does this mean that the Purchaser cannot counteract the defence put up by the Seller? Not at all. The ‘voetstoots’ clause only provides protection for the Seller who disclosed all latent defects within their knowledge and did not try to conceal it or tell half-truths. There is a duty of proof on the Purchaser to show that the Seller was aware of the defect or should reasonably have been aware thereof and fraudulently concealed the defect.
If the Seller purchased the home in the condition as it is and believed that the property is statutorily compliant, the prospects of being protected by the ‘voetstoots’ clause is very good. However, if the improvements in question was built by the Seller, there would be an expectation that they should know whether it was on plan or not and will therefore not be in a position to enjoy the protection of the ‘voetstoots’ clause.