Legal Articles

When selling a property, it is a legal requirement for the seller to inform the buyer of any defects, no matter how big or small. Failure to do so could result in legal action being taken against the seller, as recently demonstrated in a case in which the sellers were ordered to pay the buyer for failing to disclose material defects in the property. We discuss this case below.

Voetstoots Clause Case Law South Africa

Molatelo Maloka, who purchased a home that turned out to have a number of defects. Despite the initial excitement of owning her dream home, Molatelo soon realized that the house was in a state of disrepair, including issues such as damp, a strong smell, and paint that was bubbling and cracking.

Frustrated with the situation, Molatelo decided to take legal action and approached the Gauteng High Court in Pretoria. Her aim was to secure a reduction in the selling price of the property, as well as to force the sellers to cover the cost of fixing the damp problem.

As the case unfolded, it became clear that the sellers were aware of the defects in the property at the time of the sale. Despite this knowledge, they included a voetstoots clause in the sale agreement, which essentially means that the property is sold "as is", with no warranty as to its condition.

Molatelo Maloka, who alleged that the sellers of a property, Nicholas and Hesta Vermeulen, failed to disclose material defects in the property before she purchased it.

According to Maloka, she viewed the property with an estate agent who informed her that it had recently undergone renovations, including work in the kitchen. She also noticed some bubbling and peeling paint in the main bedroom and asked the Vermeulens if there were any waterproofing problems, to which they answered in the negative. Nicholas Vermeulen did offer to repair the issue if Maloka chose to purchase the house.

Maloka also testified that during a visit to the property with her father before the transfer of ownership, she noticed that the damp issue she had previously noted in the main bedroom had been repaired.

However, after moving into the property, Maloka noticed a strong, overwhelming damp smell upon returning from a holiday. She initially thought that the smell was caused by the carpets, which had been recently cleaned, but soon discovered that the issue was more serious. Her belongings had developed mould, and the kitchen shelving had sunk due to water damage.

Despite noticing these issues, Maloka continued to reside in the property and notified the estate agent of the issue. She also sought legal advice regarding the matter.

Maloka argued that the Vermeulens had a duty to disclose the damp problem, and that the voetstoots clause in the sale agreement did not apply due to their failure to disclose this issue. The Gauteng High Court agreed with Maloka's argument and ordered the Vermeulens to pay for the cost of repairing the damp issue and to reduce the selling price of the property.

Latent Defects, Voetstoots Clause, and Concealing Defects

Nicholas Vermeulen maintained that the house had been well taken care of, and any defects had been repaired. He stated that Maloka had not asked him about any damp problems during the sale of the house, and that he and his wife had not deliberately concealed any defects from the plaintiff.

However, the court found that the Vermeulens had knowledge of the damp issues in the house and deliberately withheld this information from Maloka at the time of the sale. The judge ruled that the voetstoots clause in the sale agreement did not apply in this case, as the Vermeulens failed to disclose these material defects.

The court ordered the Vermeulens to pay Maloka the cost of repairing the damp issues in the amount of R414,787.77. The judge found that the Vermeulens' non-disclosure of the damp issues constituted fraudulent conduct, and therefore, Maloka was entitled to relief.

This case highlights the importance of full disclosure when selling a property. The voetstoots clause will not protect a seller who withholds information about material defects in the property from the buyer. Sellers should disclose any known defects and provide the buyer with the opportunity to make an informed decision regarding the purchase. Failure to do so could lead to legal action and financial consequences for the seller.

Van Deventer & Van Deventer Incorporated – Conveyancing Attorneys South Africa

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