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Both the seller and purchaser have rights and obligations which are laid out in the purchasing agreement. This agreement must be drawn up by a conveyancer and real estate agent.
The main right which the seller may enforce in a purchasing agreement is the Voetstoots clause.
The Voetstoots clause was derived from the old Roman-Dutch principle and refers to the selling of the property as it stands. What does this mean?
The property would sell in the exact condition that it is purchased in. This ensures that the seller is not responsible for any defects in the property that have been disclosed and the purchaser take on all the risk when purchasing the property.
Usually the purchaser would escape liability within the first 5 days (known as the cooling off period) where they may cancel the purchasing agreement as they may not be happy with the purchase they made.
However, in the circumstances of the Voetstoots clause, the purchaser is not able to cancel the sale agreement based on the cooling off period.
The Voetstoots clause does not allow the seller to escape liability if defects were not disclosed to the purchaser and if the seller was aware that the defect existed.
There are two types of defects.
Patent defects referring to something that you can see and latent defects referring to something which you cannot see. If the property is purchased using the Voetstoots clause, patent defects will not allow for the cancellation of the contract.
In respect of latent defects, the seller is not protected under the Voetstoots clause as this will amount to a misrepresentation on the Sellers behalf. The purchaser then must rely on the cooling off period. The Seller must prove that they were unaware of the latent defect in which case the purchaser will have no available remedy.
It is important that a seller does not conceal a latent defect in the property intentionally if they wish to rely on the Voetstoots clause.
Both the Seller and Purchaser have rights and responsibilities when purchasing a property. It is important that both parties have legal representation. Our conveyancing attorneys in Cape Town are well-versed in property purchasing and selling and can offer great insight into the process.
Contact us for more information about our conveyancing services and for assistance with your property sale or purchase.
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