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The words ‘latent defect’ appears in the following examples and usually on an Offer to Purchase document as well. In brief, a latent defect is a defect pertaining to the property being sold, which is known to the Seller and that the Seller purposely fails to disclose to the Purchaser.
The word “voetstoots” appears in the following examples and usually on an Agreement of Sale document as well. This means that the Seller shall not be liable for the defects of the property. However if the Seller is aware of a latent defect (as above) and fails to disclose this to the Purchaser then the Voetstoots clause will not afford the Seller protection.
A) The geyser in the house I sold is leaking. What should I do?The house is normally sold “voetstoots” That means the house is sold “as it is”. The Purchaser is deemed to have inspected the house and bought it with whatever defects there are. If transfer has not yet been registered then the Seller is still responsible for the repairs and could possibly recover the repair costs from their Home Owner’s Insurance. If the transfer has been registered it would be up to the Purchaser to prove that the faulty geyser was a latent defect. B) The Purchaser is complaining that the swimming pool is green. What must I do? If the pool was crystal clear and sparkling blue at the time it was sold and was then handed over looking like pea soup then it would be incumbent upon the Seller to restore it to the condition it was at the time of sale. C) The Purchaser is complaining that I removed the DSTV Aerial. Can they claim it back? One must look carefully at the terms of the contract dealing with this item. If no mention is made of the aerial, it will be regarded as a fixture that the Seller is not entitled to remove. D) The Purchaser is complaining that the light fittings are not the same. Can they claim to have the originals refitted? In the event of the Seller changing the light fittings after conclusion of the Agreement of Sale, the Seller shall be liable for the cost of replacing the fittings unless the contract states otherwise. Light fittings are also regarded as fixtures unless otherwise agreed to by the parties. E) The Purchaser is complaining that the stove is not working? Can they claim to get me to repair it? It is the duty of the Agent/Seller to point out the condition of such items. If the Purchaser bought “voetstoots” there would be very little they could do unless it could be proved that the faulty stove was a latent defect.  |
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