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Voetstoots and latent defects: what the clause really means
Voetstoots means you buy the property as it stands, with any faults it has. If a hidden defect shows up after transfer, the clause usually stops you from claiming against the seller. There is one big exception: it does not protect a seller who knew about the defect and deliberately hid it to deceive you. It also works differently when the seller is a developer or someone selling in the ordinary course of business.
What voetstoots covers
The word is Afrikaans and roughly means as it stands. Most offers to purchase in South Africa contain a voetstoots clause. It matters because of the difference between two kinds of defect:
- Patent defects are visible or easy to spot: a cracked wall, a stained ceiling, a broken window.
- Latent defects are hidden. They are not obvious on a normal viewing, such as a roof that leaks only in heavy rain or faulty plumbing inside a wall.
A voetstoots clause means that, as a rule, you cannot cancel the sale or claim a price reduction because of either type. This is why a viewing and an inspection before you sign are so important.
When the clause does not protect the seller
The courts have held that voetstoots does not protect a seller who knew of a defect when the contract was signed and deliberately concealed it with the intention to defraud. Two things follow from that:
- Knowing about the defect is not enough on its own. You would have to show the seller knew and hid it with intent to deceive.
- The burden of proving this falls on the buyer. That can be hard, so do not count on it.
Some commentary says that reckless half-truths can also amount to fraud. Whether they do depends on the facts, and an attorney can tell you how it applies to your case.
Sellers who are in business
An individual selling their own home is generally outside the Consumer Protection Act, so voetstoots works as described above. The position is different for developers, property flippers and anyone else who sells in the ordinary course of business. They must meet the Act’s rules on safe, good-quality goods, and a blanket voetstoots clause does not waive those rights. A business can sell in a specific condition only if it expressly told you about that condition and you accepted it.
If you buy a new home from a developer, read our guide on buying a new development, and ask what warranties or guarantees come with it.
Disclosure and what the seller should tell you
When an agent sells the home, the seller must complete a disclosure form listing known defects, and the agent must hand a copy to anyone about to make an offer. If it is missing or unsigned, the agreement is read as if no defects were disclosed. A private seller with no agent has no such duty under that rule, but concealing a known defect still defeats the voetstoots clause. A sensible seller lists what they know. Read more about the mandatory disclosure form.
How to protect yourself as a buyer
- View the home more than once, at different times, and in the rain if you can.
- Ask direct questions about leaks, damp, cracks, past repairs and building work, and keep the answers in writing. Our list of viewing questions will help.
- Read the disclosure form carefully, and compare it to what you see.
- Think about a professional inspection, especially for older homes or anything with visible damp. A suspensive condition can make the sale depend on a satisfactory report. See suspensive conditions explained.
- Check the compliance certificates the seller must provide, such as electrical. See compliance certificates when selling.
- Add the clause to the list of things to understand before you sign. See the offer to purchase: what to check.
If you find a hidden defect after transfer, collect evidence at once: photos, a written report from a qualified person, and any messages or documents showing what the seller said. Then speak to an attorney before you act, because time limits and the details of the contract matter.
What to do next
- Set aside a repair budget when you plan your finances. The affordability calculator shows how much room you have each month.
- Browse homes and arrange viewings on PropertyNow.
- Read the disclosure form guide before you make an offer.
This article is general information for South African readers, not legal, financial or tax advice. Rules and rates change, so check your own situation with an attorney, your bank or a tax practitioner. Our property calculators can help you work out the numbers.