Real Estate Investor Magazine South Africa October 2018 | Page 6

Q&A Property Advice BRUNO SIMAO Founder & Director Bruno Simao Attorneys Q What is a voetstoots clause, patent and latent defects and how does it impact me when buying a property? A The voetstoots or “as is” clause, simply put, means that what you see is what you get. To elaborate on this a little further, by using this clause, the seller excludes the implied warranty that there exist no latent defects in the property being sold, leaving the risk of such defects on the shoulders of the purchaser. This affords the seller pro- tection from any later claim by the purchaser for damages, the reduction of the purchase price or even cancellation of the sale as a result of such defects. To understand better how voetstoots works, one must dis- tinguish between what is known as a “patent” defect and a “latent” defect. “Patent defects” are defects that are apparent and easily dis- coverable by a reasonable inspection, e.g. broken cupboards and windows. “Latent defects”, in contrast, are  defects  that are not ap- parent to an ordinary purchaser, often unnoticeable to an untrained eye, e.g. mould resulting from dampness and flooding caused by rain. It has always been a principle in our law that if the seller of a property is aware of a latent defect but fails to disclose this to the purchaser, then the seller will not be able to rely ASK THE EXPERTS 4 on the voetstoots clause. Another, very important, change to the application of the traditional voetstoots clause was affected through the in- troduction of the Consumer Protection Act, no. 68 of 2008 (“CPA”). According to Section 55(2), every consumer has a right to receive goods that are “reasonably suitable for the purposes for which they are generally intended”, “are of good qual- ity, in good working order and free of any defects”, “will be usable and durable for a reasonable period of time” and “comply with any applicable standards”. It follows in Section 56(2) that if the above is not adhered to, “within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense”. In such circumstances the supplier must, at the choice of the consumer, either: • “Repair or replace the failed, unsafe or defective goods;” or • “Refund to the consumer the price paid by the consumer”. This protection will not, subject to some exceptions, be af- Do you have a property question you would like answered by our experts? If so, post it on ASK THE EXPERTS on www.reimag.co.za or email [email protected] OCTOBER/NOVEMBER 2018 SA Real Estate Investor Magazine