Sideshow Bob
Honorary Master
Have any of you signed OTP recently with voetstoots clause? We are still debating whether it is worthwhile taking legal opinion on this, however, any forum feedback will be appreciated. Thanks in advance.
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Property: offer to purchase
- Thread starter Sideshow Bob
- Start date
Turbo_Aspiration
Expert Member
Are you buying directly off a developer? If so, this is no longer allowed under the CPA.
However, individual sellers can still sell "voetstoots". If you're getting the property at a good price, get a professional to have a look around for any issues with the house (damp, structural, fittings etc). You can include this inspection as an extra clause in your OTP. Obviously you'll have to pay for it.
However, individual sellers can still sell "voetstoots". If you're getting the property at a good price, get a professional to have a look around for any issues with the house (damp, structural, fittings etc). You can include this inspection as an extra clause in your OTP. Obviously you'll have to pay for it.
Sideshow Bob
Honorary Master
Thanks a lot, buying from a private seller but via agent. Problem with adding clause in OTP is that we will spend close to 2500 rands for home inspection and then meanwhile seller can still accept other OTP's that come along, isn't it? I did not see any clause in OTP that forbids seller in accepting other OTP's.
AlmightyBender
Executive Member
You're correct it is a risk. But that R2500 now could save you many many more thousands down the line. You could also ask to add a clause that seller not allowed to accept any offers for x days after your OTP pending home inspection. Only thing they can do is say no. Be very weary here. Even with voetstoots clause they are still required to inform you of all known defects (I think).
Maybe add a clause to the OTP that states once the OTP has been accepted inspection will take place and any serious issues not disclosed by the seller prior to the offer being submitted will constitute a withdrawal of the offer?
ToxicBunny
Oi! Leave me out of this...
Yeah go along those lines.
Voetstoets clause accepted so long as any serious issues uncovered by the home Inspection are dealt with by the seller pretty much.
WR10
Active Member
I just signed an offer to purchase with no clauses,
The only thing arranged is for the seller to replace one window.
The said property is a flat, is there a need for inspections ?
The only thing arranged is for the seller to replace one window.
The said property is a flat, is there a need for inspections ?
lucifir
Expert Member
Also thinking of this for a flat/apartment, but viewing it did not show any issues, just not sure about whether to get an inspection done or not, as I was told the levies cover all damages,etc.
So not sure if an inspection is worth it??
If you were told this by the seller I would be wary, confirm this with the body corporate.
WR10
Active Member
i am under the impression the body corp is liable for the flat, not sure if i am wrong
bassplayer
Senior Member
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My advice. Trust no one and make sure your OTP is solid.
http://www.michalsons.co.za/voetstoots-gets-the-boot/7205
Q: Can a ‘voetstoots’ clause still be valid under the new Consumer Protection Act?
A: YES, unless you are a developer, investor or speculator
Our common law position is that a seller is liable to a purchaser for all latent defects in the property sold for a period of three years after the discovery of the defects.
Latent defects refer to defects which exist in hidden or dormant form but are usually capable of being brought to light. Patent defects refer to defects which are readily seen, discovered, or understood to be defects.
As a consequence of the harshness of this provision, the ‘voetstoots’ clause has been included in all agreements of the sale of immovable property and offers the sellers protection from the discovery of latent defects by the purchaser after the sale. This applies across the board, except where the sellers acted fraudulently by either; being aware of the defect and not disclosing it or concealing the defect from the purchaser or agent.
In terms of this, the balance has shifted with transactions that are covered by the CPA. The operation of the ‘voetstoots’ clause is excluded from transactions that are concluded in the ordinary course of the supplier’s business by operation of the following section of the CPA;
Section 55 – Consumer’s Right to Safe, Good Quality Goods (except goods bought on auction) This entitles the purchaser to receive the property or goods, reasonably suitable for the purpose which they are generally intended and are of good quality, in good working order and free of any defects.
However even more importantly and to resolve the recurring confusion amongst South African’s, is knowing when the consumers rights, provided by Section 55, DO NOT apply to the transaction.
If the purchaser has been informed expressly or in writing that; that the property was offered in a specific condition, which details all defects and if the purchaser has expressly agreed to accept the property in that condition or acted in a way the was consistent with accepting the property in that condition it becomes irrelevant whether the failure or defect was latent or patent.
This means in fact, that the ‘voetstoots’ clause can still be included in a contract on condition that the seller has clearly disclosed all defects to the purchaser and the purchaser has accepted this. The defects could be included in the contract by the means of an annexure to the contract or if the contract drafted by the agent allows for the addition of special information.
Where this is true of one-off sales the situation is different where the seller is a developer, investor or speculator. Such indivuals or companies cannot exclude liability for defects by way of a ‘voetstoots’ clause. In these cases, if 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 transfer.
http://www.michalsons.co.za/voetstoots-gets-the-boot/7205
Q: Can a ‘voetstoots’ clause still be valid under the new Consumer Protection Act?
A: YES, unless you are a developer, investor or speculator
Our common law position is that a seller is liable to a purchaser for all latent defects in the property sold for a period of three years after the discovery of the defects.
Latent defects refer to defects which exist in hidden or dormant form but are usually capable of being brought to light. Patent defects refer to defects which are readily seen, discovered, or understood to be defects.
As a consequence of the harshness of this provision, the ‘voetstoots’ clause has been included in all agreements of the sale of immovable property and offers the sellers protection from the discovery of latent defects by the purchaser after the sale. This applies across the board, except where the sellers acted fraudulently by either; being aware of the defect and not disclosing it or concealing the defect from the purchaser or agent.
In terms of this, the balance has shifted with transactions that are covered by the CPA. The operation of the ‘voetstoots’ clause is excluded from transactions that are concluded in the ordinary course of the supplier’s business by operation of the following section of the CPA;
Section 55 – Consumer’s Right to Safe, Good Quality Goods (except goods bought on auction) This entitles the purchaser to receive the property or goods, reasonably suitable for the purpose which they are generally intended and are of good quality, in good working order and free of any defects.
However even more importantly and to resolve the recurring confusion amongst South African’s, is knowing when the consumers rights, provided by Section 55, DO NOT apply to the transaction.
If the purchaser has been informed expressly or in writing that; that the property was offered in a specific condition, which details all defects and if the purchaser has expressly agreed to accept the property in that condition or acted in a way the was consistent with accepting the property in that condition it becomes irrelevant whether the failure or defect was latent or patent.
This means in fact, that the ‘voetstoots’ clause can still be included in a contract on condition that the seller has clearly disclosed all defects to the purchaser and the purchaser has accepted this. The defects could be included in the contract by the means of an annexure to the contract or if the contract drafted by the agent allows for the addition of special information.
Where this is true of one-off sales the situation is different where the seller is a developer, investor or speculator. Such indivuals or companies cannot exclude liability for defects by way of a ‘voetstoots’ clause. In these cases, if 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 transfer.
bassplayer
Senior Member
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You should still inspect the property anyway. Having said that, the body corp covers damages through their insurance. Infact, the seller can request the body corp insurance to even replace the window.
lucifir
Expert Member
Really??
As i am thinking of purchasing a property that has a huge crack on the wall all the way across most of the floor, which has even cracked the tiles. The agent says the body corp will not cover this, but surely this falls within the insurance as I am not sure how any could make such a crack, other than due to structural damage, possibly due to settling!!
ToxicBunny
Oi! Leave me out of this...
Try and find out how old the property is, normally that will happen due to settling, but that should happen in the first few years of the property being erected.. after that I would lean towards structural issues..
I was also looking at a house with a crack through the floor, eventually walked away because the more I dug into the house the more structural issues I ended up finding that the owner had tried to cover up.
spiderz
Honorary Master
If they want a voetstoots clause, offer 20% less 
lucifir
Expert Member
This is in a complex, so I figured the body corp should cover this as part of the levies/insurance, but for some reason they are not. Anyways, also leaning towards dropping this altogether as I have no idea how much this might set me back in the long run
ToxicBunny
Oi! Leave me out of this...
Well to give you an idea... to fix the "crack"... lets assume its a tiled floor.
Best case scenario :
You will need to rip up all the tiles because you will not be able to match what is already down. (so a grand or two to rip up the tiles, and a few grand to replace them all.. +-R150per sqm for the new tiles and to be laid)..
Worst case scenario :
You will need to rip up all the tiles, you will need to underpin foundations, you will need to check that you don't have subsidence underneath the floor, then redo all the tiles... (+- Unknown figure, friend of mine just had the underpinning done on a corner of his house for R18k alone.)
