When entering into an Agreement of Sale, one clause that often causes confusion – and sometimes costly disputes – is the voetstoots clause. While many sellers take comfort in this provision, it is not as all-encompassing as commonly believed. Equally important is the role of the Seller’s Disclosure Form, which has become a key safeguard in modern property transactions.
What is the Voetstoots Clause?
“Voetstoots” means “as is.” In property transactions, it means that the purchaser accepts the property in its current condition, including any defects.
At first glance, this seems to favour the seller—but the reality is more nuanced.
Understanding Defects: Patent vs Latent
A proper understanding of defects is essential to appreciating how the voetstoots clause operates.
Patent Defects
These are defects that are visible or reasonably identifiable upon inspection.
Common examples include:
- Cracks in walls
- Damp or water damage
- Broken fittings or windows
The responsibility lies with the purchaser to inspect the property before signing the Agreement of Sale. If a defect is visible and the purchaser fails to notice it, they will generally have no recourse against the seller after transfer.
Latent Defects
Latent defects are hidden defects that are not visible upon reasonable inspection.
Examples include:
- Hidden plumbing leaks
- Electrical faults not immediately apparent
- Structural issues beneath finishes
- This is where the voetstoots clause becomes more limited.
If a seller knew about a latent defect and deliberately failed to disclose it, the law will not allow them to rely on the voetstoots clause. This is considered fraudulent non-disclosure, and it can expose the seller to serious legal consequences.
Why the Seller’s Disclosure Form Matters
The Seller’s Disclosure Form plays a crucial role in bridging the gap between buyer and seller expectations. It requires the seller to disclose any known issues affecting the property, including:
- Structural concerns
- Roof leaks
- Plumbing or electrical problems
- Any disputes or irregularities
- A Tool for Transparency and Protection
For sellers, the disclosure form is not just an administrative step, it is a layer of protection. Full and honest disclosure significantly reduces the risk of future claims based on non-disclosure.
For purchasers, it provides valuable insight into the condition of the property, allowing for informed decision-making and, where necessary, negotiation.
Striking the Right Balance
The voetstoots clause remains an important part of property law, protecting sellers against unknown defects. However, it does not shield a seller who knowingly withholds information.
In today’s property landscape, transparency is key. A properly completed Seller’s Disclosure Form ensures that both parties enter the transaction with a clear understanding of the property’s condition, minimising risk and promoting smoother transfers.
Final Thought
A common misconception is that voetstoots means “no responsibility.” In reality, it means that sellers are protected against defects they did not know about.
Sellers remain responsible for defects they did know about but failed to disclose
Ultimately, honesty in disclosure is not only a legal obligation – it is the foundation of a fair and successful property transaction.
ESI Tip: The ESI App includes a Seller’s Disclosure Form that can be sent directly to your client by the agent and conveniently completed, signed, and returned within the app.