Almost all sale of land agreements includes a voetstoots clause which essentially means that the purchaser accepts the property “as is” and thus accepting the risk of defects (patent or latent) at the time of the sale.

However, for every rule at least one exception exists which is also the case with the voetstoots clause. For instance, where a seller conceals latent defects, which he was aware of at the time of the sale, the seller will be liable for those defects provided that the purchaser can prove that the seller knew about it at the time of the sale and maliciously intended to conceal its existence from the purchaser with the purpose of defrauding him.

It is trite law that buildings erected without municipal approval constitutes a property with a latent defect. Thus, if a seller knows that there are structures on the property which does not form part of the approved plans (especially if the seller was involved in the renovations) and intentionally fails to disclose it, the seller will not be able to rely on the provisions of the voetstoots clause.

Where the seller can be regarded as a “supplier” in terms of the Consumer Protection Act this position in respect of a voetstoots sale will however change.

Be vigilant when buying property and ensure that the deed of sale makes provision for a seller’s warranty in respect of the building plans and overall municipal approval of the structures.