Q&A: UNDERSTANDING THE VOETSTOOTS CLAUSE IN PROPERTY CONTRACTS

This is Part 5 of a five-part series. Law firm STBB hosted a webinar on the topic of ‘caveat emptor’ and the following is the transcript:

…continued from Part 4

In conclusion, the issue of latent defects in property transactions is complex and highly fact-specific. Purchasers face significant challenges in proving their claims, particularly when invoking remedies such as restitution or reduction in price. The burden of proof lies squarely on the purchaser, who must demonstrate not only the existence of the defect at the time of sale but also that the seller had knowledge or should have had knowledge of it.

Expert evidence plays a crucial role in quantifying the reduction in property value due to defects, adding to the legal costs and complexity of litigation. Courts decide these matters on the balance of probabilities, weighing the evidence and credibility of witnesses to determine the most probable version of events.

Q&A session highlights

During the Q&A session, several pertinent questions were raised, shedding light on various aspects of latent defects:

• Time limit for claims: There is a three-year prescription period for bringing claims related to latent defects, starting from the date when the purchaser knew or should have known about the defect.
• Effect of voetstoots clause: If the buyer and seller agree to remove the voetstoots clause from the sale agreement, the seller loses the protection it provides, making them potentially liable for latent defects.
• Nature of defects: Questions arose about whether natural elements like wildlife behaviour (e.g., baboons in a neighborhood) constitute latent defects. The consensus was that these are generally not considered defects unless they materially affect the property itself.
• Minor defects: Even seemingly minor defects like a broken window can be contentious. If such defects existed at the time of sale and were not disclosed, the seller could be held liable, though proving such cases can be challenging.

Practical Advice

Navigating these complexities requires thorough due diligence and possibly legal consultation before and after property transactions. Potential purchasers are advised to:

• Seek professional inspection: Engage professional property inspectors to uncover potential defects before finalizing a purchase.
• Document everything: Maintain detailed records and documentation of all communications and inspections related to the property.
• Understand legal rights: Familiarize yourself with local laws and regulations regarding property transactions and latent defects.

In conclusion, while legal remedies exist to protect purchasers from latent defects, the process involves legal intricacies and costs. Each case is unique, requiring careful consideration of the facts and expert guidance to navigate successfully.