Voetstoots ruling helps protect seller

A recent Supreme Court of Appeal decision in the case Odendaal v Ferraris has strengthened the position of property sellers when challenged on the voetstoots clause, says Grant Gunston, senior director of the Cape firm of attorneys and conveyancers, Grant Gunston Inc.

In this decision, the judge ruled that a buyer taking the seller to task for non-disclosure of a latent defect has to be able to show that the seller was aware of the defect, and that he or she deliberately avoided disclosing it with the intention of defrauding the buyer. This, says Gunston, underlines and reinforces the long-held understanding that the voetstoots clause provides strong protection for sellers.

"In this particular case, the buyer sought compensation for the fact that certain alterations had been carried out without the plans being approved by the municipality. However, not-withstanding non-disclosure of this fact to the buyer, the seller was exonerated because the court held that she had not withheld the information with the intention to defraud the buyer," says Gunston.

"Estate agents and conveyancers often do include in their deeds of sale a clause to the effect that the seller guarantees that all plans have been approved. This may well become a more regular practice as a result of the Odendaal v Ferraris court ruling.

"There will be people who regard this ruling as too soft on the seller - but it does give a clear warning to buyers and their lawyers to check the conditions of a prospective property purchase thoroughly," says Gunston.

Weekend Property supplement (Saturday Argus)

Posted at 08:06AM Feb 07, 2010 by Editor in Residential  |