Recently I had the following question put to me by a client who had recently purchased a house:
I recently bought a house and on taking occupation of the property I noticed that there was a bad leak in the roof that the seller never told me about. I complained to the agent, and she told me that as the deed of sale contained a “voetstoots” clause there was nothing I could do. What are my rights? Please advise.
A voetstoots clause in a contract bars a buyer from complaining as he or she buys the goods (in this case a house) “as is”, and therefore in the condition in which it is found.
However, a seller is deprived of the protection of a “voetstoots” clause in circumstances where the seller perpetrated a fraudulent non-disclosure or fraudulent misrepresentation.
Our law sets out when a buyer can successfully sue a seller, despite the “voetstoots” clause. In order to be successful, the buyer must show that:
- The roof of the property suffered from a defect, and
- The seller was aware of the defect in the roof, had a duty to disclose the defect to the buyer and failed to disclose the defect, thereby committing a fraudulent and material non-disclosure, alternatively misrepresentation by omission.
If the buyer establishes that the seller intentionally or negligently failed to disclose the defects in the roof and that he would not have entered into the sale agreement if he had been aware of the defects, the buyer would be entitled to the fair reasonable costs of repairing the roof and any other concomitant loss he/she may have suffered.
Please visit our website at www.legaladviceoffice.co.za or send us an email to [email protected] and we will respond to your legal queries within 48 hours.
About our author:
Hugh Pollard (Legal Consultant) has a BA LLB and 47 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 25 years as a Legal Consultant.
082-0932304 (Hugh’s Cell Number)
