With many properties in South Africa, sold Vetstoots, the buyers are at risks of sellers not disclosing latent defects. However, it is now becoming clear that often, agents are also guilty of the same. With Estate Agents representing the seller, who is protecting the buyers?
John Graham, CEO of HouseCheck, says the massive South African estate agency industry should anticipate increased legal action, where buyers are accusing estate agents of not disclosing known defects.
In some cases, buyers have requested the chance of a home inspection, and have been discouraged from doing so, with agents justifying their advice with a range of excuses. Some buyers have been told that enlisting the services of home inspectors, is too time consuming and may result in losing the property to another buyer. Others, especially foreign buyers, have been convinced by the estate agent that it is unnecessary to commission expensive home inspection reports, and that it is not common practise in South Africa. What is common practice in South Africa is this clause of voetstoots.
Buying a house voetstoots
If you buy a house voetstoots, the seller gives no warranty in regard to the building and any improvements upon the property, and is not liable for any defects, latent or patent.
Property is nearly always sold as it stands, voetstoots. In common law the seller is not liable for patent defects in goods sold. If you purchase a house and there are certain obvious defects - for example, broken windows, cracks in the walls, and so forth - defects which would have been revealed by a reasonably careful inspection of the property, then you, as buyer, have no claim against the seller.
With latent defects, however, the position is different. Where there is some defect in the house which is not apparent on a careful inspection, the seller is liable for those defects if he or she knew about them. In such an instance, the seller may be called upon to refund part of the purchase price or even to accept cancellation of the entire sale, depending on the nature or extent of the defect.
Because sellers are obviously reluctant to have to make good defects or run the risk of having the sale cancelled or having to refund a part of the purchase price should a serious latent defect become apparent, it is usual in agreements of sale for the seller to exclude the common-law liability for such defects. This is usually achieved by a clause stating that the house is sold voetstoots. Such a clause clearly excludes the seller's liability for any such defects.
However, if the seller, in fact, knew of a latent defect - for example, if the roof had leaked in the last rains before the house was sold - even a voetstoots clause in the agreement of sale will not take away the seller's liability. In other words, the seller has a duty to reveal to the buyer any latent defects.
However, the onus of proof that the seller was aware, lies on the buyer, who would have to prove that the seller knew of the defect, if any court action against the seller is to succeed.
Graham says his company receives numerous and regular complaints from home buying consumers who feel cheated after moving into their new home. When a home is sold voetstoots, the estate agent should be advising the buyer to get a professional to check out the condition of the house before asking the buyer to sign a standard estate agency offer to purchase form - which routinely includes a voetstoots clause. This is best done by making the offer to buy conditional on a satisfactory inspection report, he says.
Without having any clue as to the condition of the roof covering, roof structure and geyser, agents often have the buyer sign their standard voetstoots offer to buy document with the only advice being: “you better snap this one up before someone else does”.
"The day is coming when a wealthy buyer will take action to expose this estate agency practice. The public, especially first-time buyers, are becoming increasingly angry at the pressure often exerted on buyers by estate agents,” says Graham.
He says if the agencies won’t budge and do what is right, then the Consumer Protection Commission and the Estate Agency Affairs Board should issue regulations compelling all agents to produce evidence that they have properly advised their buyers about the implications of buying a home voetstoots.