A very real nightmare for many prospective buyers is buying a house which is replete with hidden defects that need fixing later on.

Property24 spoke to some experts to find out what to look out for when buying and what preventative steps can be taken in order not to fall victim to the much-maligned “voetstoots” clause.

Laurie Wener, MD for Pam Golding Properties (PGP) in the Western Cape, says one should firstly be on the lookout for damp and mould and/or very fresh paint that may mask this. “Other serious snags include sagging roofs, signs of possible sinking foundations or floors when skirtings are not flush with the floors or deep cracks in walls or floors. Check the doors and windows for warping and ask questions through your agent or have the property inspected by an expert.”

She says no property is completely free of defects and there is also natural wear and tear with time. “A property that has been standing for some years is unlikely to be structurally unsound unless there are definite signs of sinking, cracking and disruption of the level surfaces. It is a question of the seriousness of the defects versus the price.”

Jan Davel, COO and director of the estate agency group, says in light of the “voetstoots” clause, an independent home inspection is definitely a simple and care-free answer.

He notes that in the US and UK, a property being sold must pass a home inspection or “appraisal” by an independent, accredited expert in order for the prospective buyer to obtain a home loan.

“And although this system was originally introduced to give the lenders peace of mind, a satisfactory appraisal is also of great benefit to the homebuyer and to the seller, who then doesn’t have to worry about post-sale comebacks from buyers unhappy with their choice.”

He suggests that a similar system should be introduced in SA, where most residential property sale agreements still contain a standard “voetstoots” clause that basically means that the property is being sold “as is” and without any guarantees.

“This clause is seen as being all in favour of sellers, as it protects them from liability for latent or hidden defects, but things are seldom so clear-cut. Buyers can still sue for damages if they believe there was deliberate non-disclosure of latent defects by sellers, and they can and do try other ways to get deals cancelled if they feel cheated, like refusing to pay deposits or occupational interest, and dragging out the transfer by taking weeks to sign the necessary documents.”

On the other hand, says Davel, it must be acknowledged that the “voetstoots” clause has sometimes been abused by unscrupulous sellers and/or their agents, and that there is a case to be made for protecting buyers against this possibility, using the Consumer Protection Act (CPA).

“The trouble is that it seems at this stage as though the new legislation will only apply to ‘primary suppliers’ such as developers, speculators and institutions with large property portfolios, whose business is trading in property, and not to individuals selling their own homes in one-off transactions, who will thus still be able to put a ‘voetstoots’ clause in their sale agreements.

“And to make matters worse, it is not at all clear whether estate agents, whose normal course of business is to be involved in property transactions, will be regarded as having the same liability as primary suppliers, or whether they will be seen as third party facilitators of the one-off transactions where voetstoots could still apply.”

However, he says, the CPA does make clear provision for the new National Consumer Commission to accredit consumer protection organisations. “And we think that in this context it should look at licensing professional home inspection organisations to provide comprehensive and unbiased reports that would create total transparency between homebuyers and sellers, and eliminate the ‘voetstoots’ controversy altogether.” Wener says although home inspections are good and necessary, they should be approached with due caution. “Be wary of asking someone who may not be sufficiently well-qualified to provide a reliable opinion or have a vested interest.” – Eugene Brink

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