Seller disclosure and the voetstoots clause

A patent defect is one a reasonable buyer would notice on an ordinary inspection: a cracked window, a stained ceiling, a broken gate motor. A buyer who inspects and buys anyway takes those as they are.

A latent defect is one that is not visible on a reasonable inspection: a leak that only appears in heavy rain, a failing damp-proof course behind a plastered wall, a geyser on the edge of failure, structural movement hidden behind a repaint. These are the defects that generate litigation, because the buyer discovers them after transfer.

Almost every South African offer to purchase includes a voetstoots clause ('as is'). It transfers the risk of hidden defects to the buyer, and it is genuinely effective for that purpose. A seller who did not know about a defect is protected by it.

It has one well-established limit. A seller who knows of a latent defect and deliberately conceals it, or keeps quiet about it with the intention that the buyer will not find out, cannot hide behind voetstoots. Our courts have consistently held that fraudulent non-disclosure defeats the clause, and the remedy can extend to a reduction in price or cancellation of the sale.

The practical test the courts apply is knowledge plus intent. It is not enough for the buyer to show the defect existed; they must show you knew and that you concealed it. But that is a harder thing to defend than it sounds once you are two years into a dispute and a plumber's old invoice with your name on it surfaces.

Section 67 of the Property Practitioners Act requires a property practitioner, an estate agent, to obtain a completed, signed disclosure form from the seller before accepting a mandate. If no form is attached to the agreement, the Act treats the agreement as though no defects were disclosed at all, which is a strong position for the buyer.

That obligation attaches to the agent, not to the seller directly. Sell privately and no agent is involved, so section 67 does not apply to you in the same way.

It does not follow that you should skip it. Your common-law duty to disclose latent defects survives regardless, and a signed, dated disclosure form is the cleanest evidence that you met it. Sellers who complete one are in a substantially better position in a dispute than sellers relying on memory and good intentions. It pairs naturally with the compliance certificates you are already gathering.

The instinct to leave something off the list because it might cost you a buyer is understandable and usually wrong. A disclosed defect is a negotiation. An undisclosed one that surfaces later is a claim.

• Damp, rising damp, and any history of water ingress.
• Roof leaks, and repairs done to the roof.
• Structural cracks, movement, or subsidence, and any engineer's report you hold.
• Electrical faults, and any part of the installation you know is non-compliant.
• Plumbing and drainage problems, including slow drains and past blockages.
• Geyser age and condition, and any past failure.
• Pool leaks and pump or filtration problems.
• Boundary disputes, encroachments, and servitudes.
• Unapproved building work, alterations or additions without approved plans.
• Body corporate disputes, special levies raised or pending.

On Privately, seller disclosure is built into the listing flow rather than left to a form someone remembers to hand over at signature, which is precisely the point at which it tends to get missed.

• Put it in writing, and date it.
• Have both parties sign, and attach it to the offer to purchase.
• Describe the defect and what you know about it, not just its existence.
• Say plainly where you do not know: 'the roof was repaired by the previous owner, I have no records' is a real and useful disclosure.
• Keep a signed copy. You may need it years later.

This is general information about how disclosure and voetstoots work in South African law, not legal advice about your property. If you are dealing with a defect you are unsure about, or a buyer has raised a claim, speak to a conveyancing or property attorney. The cost of an hour's advice is small next to the cost of getting this wrong.