What are my rights, as a seller, under the Consumer Protection Act or just generally when selling a property? How does this Voetstoots clause apply to me? And also, often people ask what does this cooling off period mean? How does it apply? Is it applicable to my transaction?
First, the cooling off period is a remedy available to all, or right available, to purchase a property in terms of alienation of land which deals with all property transactions. With any property transaction, it all has to be in writing, and has to conform specifically to this piece of legislation. In that act, there is this cooling off period. You have five days to withdraw from a contract for a property that you enter into that is valued at least R250 000. Not a lot of relief for many people, but if you're at the bottom end of the market and you're acquiring a property of that value they'll know that you have that remedy available to you.
The biggy is the Voetstoots clause. It's an old Roman-Dutch principal and pretty much it says you buy the property as it stands - with the good and the bad. The seller is not responsible for any defects in the property. The purchaser obviously assumes all of that risk. That idea is countenanced with the common law principals of latent defects and patent defects.
A patent defect is something you can see. And if you enter into a contract, if you are unhappy with a huge crack in a wall or something that's not to your liking, after the fact - you have no plan because it's something you could see and the Voetstoots clause would cover that for you, if you're a seller.
In the event that it's a latent defect which is something that you cannot see, under the Voetstoots clause, the seller will not get protection if they were aware of the latent defect. So a Voetstoots clause will protect the seller, and the purchaser will have no remedy available to them if the seller was unaware that there was a latent defect. However, if there is a latent defect that the seller is aware of, the Voetstoots clause will not protect him because basically that's misrepresentation.
To conclude: Cooling off for five days if you're buying a really low end property, or if you're a seller, make sure you get protection if you're selling a property under the Voetstoots clause. If there are defects that are not visible, make sure to bring them to the attention of your agent. Bring them to the attention of the purchaser. If you're a purchaser, do your homework. Get as much information. Ask the questions. Ask the agent information, and if they make representations that later on you can rely on if you've been misled or you've not been correctly informed. Be sure to check those positions when you're buying or selling a property.
