As a seller what are your duties to disclose defects and can Voetstoots cover you the person selling a property? A prominent conveyancing firm agrees that honesty is the best policy.
What does Voetstoots mean?
Distilled, the clause Voetstoots means that a property is sold “as it stands” or “as is”. That means that as a buyer when you buy a property you buy it as is. You buy it with all the patent and latent defects.
What are patent and latent defects?
A patent defect refers to defects that are visible to the naked eye. This also means that an expert inspection is not required. Conversely, a latent defect is something that a buyer will inspect when viewing a property. We have said before in an article about the offer to purchase (OTP) that it’s the buyer’s duty to inspect the property thoroughly before signing the OTP. It is therefore imperative that the buyer inspects a property carefully and as thoroughly as possible. A normal inspection would, therefore, allow for the discovery of for example a leaking roof. In this case, the buyer is also responsible for patent defects unless the contract stipulates otherwise.
And keeping silent on defects is considered fraudulent…
The seller carries liability in respect of a property that is sold to Voetstoots under the following circumstances:
- If a seller, for example, was aware of the defects in the property when entering into the sales contract or OTP.
- And if the seller has intentionally concealed the existence of the defect. This is a serious act and results in the seller intentionally defrauding the buyer.
In the instance of a seller remaining quiet about defects and the buyer seeking legal advice, this could backfire badly for the seller. The buyer must have rights and it has previously been ruled to be fraudulent if the seller does not disclose these defects at the time of the sale.
Best to err on the side of caution
When you decide to sell a property, the first thing you get started on is to get an estate agent in to value your property. With EA Connections we help you here because we refer top agents in your area to you to prepare an accurate property valuation. The agent will notice many of the defects and would more than likely note these in the free property valuation as negative aspects to contend with during the sale of the property. For me, it’s important to be upfront at the start with a seller. I find many agents will do anything just to get a listing but I believe the buyers have rights too. The best way to approach the aspects of defects is with great caution. The winds of change are afoot and the law is bending more and more to protect buyers.
So, here are some recommendations:
- As a seller, be clear about the defects you know about (patent defects).
- List all the patent defects that you know about clearly in the offer to purchase (OTP).
- Patent defects include where you know the paint is peeling off a wall and where you may have painted or recently repaired the wall in question.
- Patent defects also include a leaking roof which is often not visible in dry weather.
- If a buyer asks an agent a question, as a seller answers the question truthfully. Don’t lie or omit the bit about “oh and the lights trip when it rains because the roof leaks”.
- As a seller, you have a duty to disclose the existence of any known defects at the time of the sale.
- Also, if a defect is visible to the naked eye it is a latent defect that is also easier to prove than you think and there have been cases where the courts have ruled in favour of the buyer. And in these instances, the seller has had to pay for damages.
- It’s best, to be honest, and upfront about any and all defects that you are visible to you, whether you have patched them up or repaired them or not.
Worst case outcomes that come from concealing defects?
There are many outcomes but in this article, we note that the courts ruled in favour of the cancellation of the property sale. In fact, the court ruled in favour of the buyers. The buyers in the example we used for our research were to be placed in the same position they were in prior to entering the sale.
The golden rule is simple
Even with the Voetstoots clause, the courts will not rule in favour of a dishonest seller. Being honest and upfront about defects is the honourable thing to do. And, it will save you a nightmare and major legal fees that can easily be avoided.
Let us help you team you up to win
We are all about helping a homeowner who wants to sell a property team up to win with a top estate agent in their area. If you are looking for a free property valuation while you contemplate the sale of your home and submit your details online. We will call you back in no time at all. Remember when it comes to selling a home step 1 is about knowing what your property is worth. Book your free property valuation now. And make sure that you get a comparative market analysis or CMA, especially if you are willing to sign a sole mandate. Make sure that in the current buyer’s market your property is listed at a market-related price. An inflated asking price allowing wiggle room for negotiation can honestly backfire very badly.
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