An expensive mess for home buyers, resulting from a voetstoots clause, is well-illustrated by the reporting of an Appeal Court judgement in the Cape Times of 28 March 2013.
The facts are: A thatch roof house in Gauteng was sold voetstoots. Aware that thatch could be a problem, the buyers wanted some assurance that the roof was sound. The sellers therefore agreed to a clause in the deed of sale reading: “Seller to transfer guarantee on thatch roof to purchaser from contractor.”
The sale went through, the buyers moved in. Then the roof started to collapse and leak and the legal bills started to mount:
- First thing the buyers discovered was that there was no valid guarantee.The original guarantee on the roof had expired.
- Second, an experienced roofer checked the structure and reported that the thatch roof was collapsing because the roof was too heavy and the roof pitch was too low. Thatch roofs are heavy structures which should also have a pitch of 45 degrees to enable the rain water to run off quickly. The roof in question had a pitch of less than 30 degrees – meaning that water was collecting in the thatch surface and rotting the grass.
- The aggrieved buyers took the matter to the High Court, which found in favour of the seller because the house had been sold voetstoots.
- The buyers refused to give up and so went all the way to the Appeal Court, which found that there was an element of deception by the sellers which negated the voetstoots clause. The Appeal Court found that on the basis of previous repairs done to the roof, the sellers were aware of a significant part of the problem. They also knew that the guarantee on which the sale depended was worthless.
The Appeal Court found that by concealing information from the buyers, the sellers had lost the protection of the voetstoots clause and the buyers were therefore entitled to compensation equal to the cost of rebuilding the walls and gable (to accommodate the increased roof weight and height) and installing a new thatch roof with the correct pitch.
The Appeal Court ordered the sellers to pay the buyers R450 000 in compensation plus interest and legal costs.
The lessons for home buyers are:
- Upfront legal costs incurred by the buyers to cover the above saga would have run into hundreds of thousands of rand. Only buyers with very deep pockets can afford to go to court to fight for justice, if they have been ripped off via a voetstoots clause. Apart from finding the money for lawyers there is also massive personal stress involved in fighting such a court action.
- Home buyers can avoid financial disaster, legal tangles and heartache by making their offer to buy a house conditional on a satisfactory home inspection report. Buyers should employ trained home inspectors who are knowledgeable and able to “raise a red flag” if they find serious problems relating to the roof, walls, foundations, drainage and installations such as electrical, plumbing and gas.
- Home sellers and estate agents can ensure that the home sale takes place in an environment of full disclosure and transparency by commissioning an impartial home inspection report upfront, or by recommending to the buyer that an independent home inspection should be conducted. This way the buyer is well-informed and understands the voetstoots condition of the property he/she is buying.