14 February 2023

Property Sellers Beware: You Can't Always Hide Behind A Voetstoots Clause

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The Court in Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 confirmed that sellers who are aware of a latent defect to the property they are selling, are not protected by a voetstoots clause.
South Africa Real Estate and Construction
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Property sellers who are aware of a latent defect to the property they are selling, are not protected by a voetstoots clause.

The Court in Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 confirmed that sellers who are aware of a latent defect to the property they are selling, are not protected by a voetstoots clause. The Court in this case ordered the sellers to pay an amount of R414 787.77 to the buyer of the property, as they deliberately and fraudulently failed to disclose extensive damp as a latent defect of the property.

Whilst the "Voetstoots" clause is a valid legal provision which sellers can enforce and rely on in the sale of certain property, the sellers of a Roodepoort-based home have recently learned of the limitations of the clause in a recent judgment passed by Judge Mokose in the Pretoria High Court.

Molatelo Maloka, the Plaintiff in the matter, approached the court for an order granting her a reduction in the selling price of the purchased home (the "property"), alongside an order forcing the sellers of the property (the Vermeulens") to pay for the repairs done by herself on the property. After viewing the property through an estate agency, Maloka was resolute on purchasing the property from the Vermeulens for an amount of R2 300 000.00. What Maloka had not realised at this stage, was that the property had an underlying damp problem. The damp was problematic throughout the property, including the bedrooms, kitchen and dining room, and more.

In recalling events leading to the purchase of the property, Maloka informed the Court that she had noticed bubbling and peeling of the wall paint, particularly in the main bedroom. Uneasy about the discovery, she said she enquired about the condition of the affected areas directly with the Vermeulens, to which they responded that there were no waterproofing problems in the property. Shortly thereafter, and before the conclusion of the transaction, Maloka visited the property once more. She recalls noticing that the damp she had previously seen on the walls had been repaired.

It was not until she had moved permanently into the property when she realised the true extent of the damp problem. At this stage, not only was the discolouration of carpets evident, but the problem was so widespread that she could now clearly smell the damp. As she had already bought and taken occupation of the property, Maloka had to consider alternative ways to remedy her situation. She approached legal practitioners to get a legal solution to the matter. She also reported the issue to the estate agents.

The Vermeulens were insistent that they were not aware of the damp problem, and that they sold the house to her "voetstoots" in any event. Further, they sold the house to her as a 'dream home' and denied that Maloka mentioned the damp problem at any stage during the transaction.

An expert witness who testified during the trial, explained to the Court that the defects shown in his report were all brought about by the incorrect design and/or construction of the property from the start and that the rising damp and lateral damp is inherent and would have manifested themselves soon after the first year of rains on the home. His opinion was therefore that the Vermeulens could not say that they had no knowledge of the damp problems in question.

Upon consideration of all the evidence, the Court concluded that the damp problem is in fact a latent defect of the property, and that the Vermeulens must have been aware of this. The court further substantiated that because the Vermeulens knew about this defect, their failure to inform Maloka of the same is equivalent to deliberately withholding knowledge of the damp problem, constituting fraudulent non-disclosure on the part of the Vermeulens. They could therefore not be protected by the voetstoots clause. Accordingly, the Vermeulens were ordered to pay an amount of R414 787.77 to Maloka, in line with a quotation received from a contractor to fix the problem.

Homeowners who want to sell their properties are reminded that a voetstoots clause only protects a seller against latent defects which are unknown to the seller. Sellers are now compelled by the new Property Practitioner Act 22 of 2019 to produce a duly completed and signed mandatory disclosure form disclosing all defects on the property that are known to the seller. Attempting to hide defects and then pretending to not know about them could be a very expensive mistake to make. It is always advisable to consult with an experienced property legal practitioner before concluding any deals.

Whilst this judgment speaks to the duties of sellers to disclose latent defects to potential buyers, it neglects to comment on the extent of liability to which estate agents can be held in such circumstances. Perhaps the court is yet to consider and comment on this aspect in future findings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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