The Supreme Court of Appeal confirmed in Odendaal v Ferraris that the age-old Voetstoots provision in a contract is still valid and enforceable. But what does this really mean? Where a seller sells to a purchaser a property and it is an express term of the agreement that the sale is voetstoots, it means that the purchaser buys the property as is. That is with all the visible defects, also known as patent defects. If however, the purchaser can prove that the seller deliberately misled her in that the seller not only knew of certain material defects, but also took measures to hide such defects from the purchaser with the intention to defraud the purchaser, the purchaser may set aside the sale on the basis of a latent defect.

If it cannot be proven that the seller had fraudulent intent in hiding a defect in the property, the sale would be voetstoots. The purchaser still has the option to claim damages from the seller based on a misrepresentation if it can be shown that the seller was aware of the defect and failed to disclose it to the purchaser.

Also be aware that the Consumer Protection Act is applicable to sales transactions where the seller is a property developer or speculator. In these cases, if the latent defects are not disclosed or if the property bought by the purchaser differs materially from the specifications, the purchaser may have the right to refuse to take the transfer. The CPA carries certain warranties which cannot be contracted out of. It protects the purchaser despite a voetstoots clause being in the Deed of Sale.

In conclusion, the purchaser must take great care to do their homework and refrain from signing an offer until they are 100% sure they want and can afford the property.

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