Voetstoots and Home Inspections: What You Can Still Claim

Almost every private residential sale in South Africa includes a voetstoots clause. It means the property is sold as it stands, and the seller is not liable for defects.

That is broadly true, and it is also much narrower than sellers believe and buyers fear.

What voetstoots actually covers

The clause protects the seller against liability for defects in the property, both the obvious and the hidden.

Patent defects are visible on a reasonable inspection - a cracked pane, a stained ceiling, a sagging gutter. A buyer is expected to see these, and voetstoots or not, a buyer who does not look has little to complain about.

Latent defects are not reasonably discoverable on inspection - a leaking foundation, faulty wiring behind a wall, a roof that fails in heavy rain. Ordinarily a seller would be liable for these under the common law. The voetstoots clause is what removes that liability.

So a seller who genuinely did not know about a problem is protected. That is the clause working as intended.

Where the protection ends

Voetstoots does not protect a seller who knew about a latent defect and deliberately concealed it.

The test is not merely that the seller knew. It is that the seller knew of the defect and deliberately concealed it with the intention to defraud - by hiding it, or by staying silent where they had a duty to speak.

That is a demanding test, and the burden sits with the buyer. But it is met more often than sellers expect, because concealment leaves evidence: fresh paint over a damp patch, a repair invoice, a neighbour who recalls the flooding, an insurance claim for the same problem.

Where it is met, the buyer's remedies are real - a reduction in the price, damages for the cost of repair, and in serious cases cancellation of the sale.

The disclosure form changed the picture

This is the development sellers and buyers most often miss.

Under the Property Practitioners Act, a seller must complete a mandatory disclosure form listing defects they are aware of, and the property practitioner must attach it to the sale agreement and provide it to the buyer.

The practical effect is significant. Voetstoots historically rewarded silence: a seller who said nothing was usually safe. A disclosure form asks direct questions, so a seller who knows about a leaking roof and ticks "no" has made a positive misrepresentation rather than merely stayed quiet. That is far easier for a buyer to prove than concealment inferred from circumstances.

Where no disclosure form is completed at all, the position is worse for the seller, not better - the agreement is interpreted as though the seller disclosed nothing, which does not assist them.

For sellers, the safe course is to disclose. A disclosed defect is priced into the offer and cannot found a claim afterwards. An undisclosed one that surfaces is a lawsuit.

Where voetstoots does not apply at all

Sales in the ordinary course of business. The Consumer Protection Act implies a warranty that goods are of good quality and free of defects, for six months, where the seller sells in the ordinary course of business - a developer, or a company selling property as part of its trade. A voetstoots clause cannot contract out of it.

A private individual selling their own home is generally not selling in the ordinary course of business, so the CPA does not apply and voetstoots holds. That distinction decides which regime you are in.

The inspection is the buyer's real protection

South Africa does not require a home inspection before a sale, and most buyers do not commission one. Given that voetstoots shifts the risk of hidden defects onto the buyer, this is the wrong economy.

An independent inspection typically covers the roof and structure, damp and drainage, electrical and plumbing installations, and evidence of movement or previous repair. It costs a few thousand rand against a purchase in the millions.

What it buys is not only knowledge but negotiating position. A report identifying R80,000 of roof work is a basis to renegotiate the price or require the repair before transfer. Discovering it after registration is a legal argument you may well lose.

Make the offer subject to a satisfactory inspection within a stated period, in writing. Sellers accept this routinely, and it costs the buyer nothing.

The compliance certificates are not an inspection

Several certificates are required or customary on transfer - electrical, gas where applicable, electric fence, and depending on the province or municipality, plumbing and beetle certificates.

Buyers frequently treat these as a survey of the property. They are not. Each certifies a specific installation against a specific standard on the day it was issued. An electrical certificate says the electrical installation complies. It says nothing about the roof, the damp, the foundations or the plumbing.

Read them for what they are, and commission an inspection for everything else.

What a claim actually looks like

Take a buyer who moves in during a dry autumn and discovers in the first winter rain that the roof leaks over two bedrooms. A roofer quotes R95,000 and says the sheeting has been failing for years.

On its own, that is a latent defect and voetstoots protects the seller. Age and prior failure are not enough - the buyer must show the seller knew and deliberately concealed.

What changes the outcome is evidence:

• The disclosure form has "any roof leaks?" marked no.
• The buyer's roofer finds a patch repair and sealant applied over the failing section, done recently.
• The previous year's insurance claim for water damage surfaces during the dispute.
• A neighbour recalls buckets in the passage.

Any one of those is arguable. Together they establish knowledge and concealment, and the buyer has a claim for the cost of repair - possibly more.

Reverse it. The seller ticked yes, noted "roof leaked in 2023, repaired", the buyer bought anyway, and the same failure occurs. The buyer has nothing, because the risk was disclosed and priced.

The whole difference is one line on a form.

Practical steps for each side

If you are buying:

1. Make the offer subject to an inspection within a stated period.
2. Read the disclosure form before signing, not with the transfer pack.
3. View in bad weather if you can. Rain finds problems no inspection report describes as well.
4. Ask direct questions in writing - about damp, the roof, boundary walls, previous flooding - and keep the answers. A written answer is a representation.
5. Keep the estate agent's marketing material. Claims made in it can matter.

If you are selling:

1. Disclose everything you know. A disclosed defect is priced in; an undisclosed one is a lawsuit.
2. Do not patch to hide. Repairing is fine and sensible. Repairing to conceal, and then denying knowledge, is the fact pattern that defeats voetstoots.
3. Keep repair invoices. They prove a problem was fixed properly, which protects you.
4. Do not rely on the clause as a substitute for honesty. It protects an honest seller and does nothing for a dishonest one.

Time limits

A claim based on fraudulent concealment is a contractual or delictual claim, and ordinary prescription applies - three years, running from when the buyer became aware of the defect and of the identity of the person liable, rather than from the date of transfer.

That is more generous than it sounds for a defect discovered in year two, and less generous than it sounds for one discovered in year five. Where a claim is contemplated, act on it rather than waiting to see whether the problem worsens.

Frequently asked questions

Can I claim if I find a serious defect after moving in?

Only where you can show the seller knew of it and deliberately concealed it, or misrepresented it on the disclosure form - or where the CPA applies because the seller sells in the ordinary course of business.

Does voetstoots cover things the seller did not know about?

Yes. That is exactly what it is for. An honest seller who was unaware of a hidden defect is protected.

Should I still get an inspection if there is a disclosure form?

Yes. The form records what the seller knows. An inspection finds what nobody knew, which is the larger category.