Condition reports and voetstoots clause: how to avoid property pitfalls

Buying or selling a property is a significant investment, and navigating the complex process

can be daunting. Two crucial aspects that play a vital role in property transactions are the

condition-disclosure report and the voetstoots clause. Understanding these better can save

buyers and sellers from potential disputes and financial losses.

What is a condition report?

A condition report is a seller’s assessment of a property’s physical state, outlining any existing defects or issues. This report serves as a crucial tool for both parties, providing transparency

and setting clear expectations. It typically includes factors such as the condition of the roof,

swimming pool, foundations, structure, and electrical, and plumbing systems, which can cause

costly headaches down the line.

Understanding the voetstoots clause

The voetstoots clause is a legal provision that absolves the seller from liability for any

concealed defects in the property that are difficult to discern. This clause is commonly

included in South African property sales agreements, and it’s essential for both parties to

understand its implications. In essence, the buyer purchases the property in its current

condition, with all its defects, whether visible or hidden.

Exceptions to the voetstoots clause

Though the voetstoots clause provides protection for sellers, there are exceptions. If a seller is

aware of a defect and intentionally hides it, the buyer may have legal recourse even after the

sale is finalised. This principle is rooted in the concept of fraudulent misrepresentation.

To protect themselves, buyers should:

Review the condition report carefully before submitting an offer to purchase;

Check the date on the report to ensure it is current;

Ask questions about the property’s history and any known issues;

Be wary of “repaired” defects, and seek clarification.

Understand the limitations of the condition report, and consider a thorough inspection.

Importance of transparency and due diligence

For buyers, due diligence and professional advice are essential to avoid costly surprises. For

sellers, transparency and honesty can facilitate a smoother, dispute-free sale. By being well-

informed and taking appropriate precautions, both parties can ensure a fair and satisfactory

transaction.

As a buyer, you can stipulate in the offer to purchase that even though you have

acknowledged the seller’s disclosure on the property, the offer to purchase is subject

to the buyer appointing their own home-inspection company to do a full

inspection within seven  days of offer acceptance. Should there be any major faults above

a certain agreed-upon amount in certain specific categories, i.e. roof, structural, damp

etc, then the offer would be subject to review between both parties.

Get expert guidance

If you’re buying or selling a property, it’s best to discuss your options with an estate agent. At You Realty, we’re committed to providing expert guidance and support throughout the

process. Contact Spencer today to learn more at 084 524-4616 or spencer@yourealty.co.za